What you need to know about living with roommates in Ontario

Ontario’s Residential Tenancies Act (RTA) gives landlords and tenants various rights and responsibilities and renters are afforded many protections as well. But there are some scenarios where the RTA’s safeguards don’t apply, even if you’re paying rent.

While it is common for roommates to work out an arrangement between themselves, the commonly used phrase “roommate agreement” for this type of tenancy does not appear in the RTA.

Benjamin Ries from South Etobicoke Community Legal Services explains that the roommates of a lease holder are not covered by the RTA because the act states that a person cannot be both a landlord and a tenant simultaneously in a single rental unit.

“That means that if anyone signs a lease and becomes what we call the ‘Capital T’ tenant under the Residential Tendencies Act, they have those rights that they get from that law. If they turn around and make an agreement with other people to move in with them and maybe pay part of the rent, part of the utilities — that agreement can’t be covered by the RTA because that would make the tenant also a landlord in the same unit,” he says.

Living with roommates

The deal between a lease holder and a roommate is a simple contract, whether written down or verbal and there is no law requiring a notice period to end it. Disputes also cannot be taken to the Landlord and Tenant Board – they have to go through small claims court.

“[This type of deal] can break down much more easily [than an official lease]. People can be kicked out or removed much more easily under those types of contracts and if you’re the tenant and your name is on the lease, you’re on the hook for the entire rent. And so you could also be left holding the bag if you have a roommate who says, ‘you know what? I’m moving, I’m leaving tomorrow,'” says Ries.

On the other hand, if the lease holder’s roommate refuses to leave, they can call police and have them removed as a trespasser or unwanted guest.

“In most cases, I think roommate agreements are a good fit for people who are family members or friends who trust each other, who have similar plans in terms of moving in or moving out, but that’s just not the reality. Increasingly in Toronto, as everything gets more expensive, people who are complete strangers to each other have been thrown into this situation where they don’t all have the same rights and where it can fall apart really quickly and leave some people without a lot of protection,” cautions Ries.

If you choose to live with roommates, he advises it is best to have the terms written down so that there is a document to refer to in case of any disagreements.

He suggests including the following or more in a roommate agreement:

• How much each person is paying
• What is private space and shared space
• What activities are acceptable in the shared space
• A guest policy that covers visitors and overnight guests
• Sharing of appliances, internet and phone services
• How much notice either party needs to give to end the agreement
• Whether pets are allowed

 

Ries adds that the lease holder has a right to have pets as per the RTA, barring any allergies or other special considerations, and the landlord cannot prevent them from doing so. However if the lease holder does not want pets in the home, they can negotiate with their roommates accordingly.

“The more you can be upfront about those types of rules, the better, I think,” he says, adding that a roommate agreement needn’t be set in stone.

“I think that people can add on to these agreements as they discover new areas [and say] ‘we have to have a household meeting. We all have to figure this out together,'” he says.

“I think the heartbreaking piece is that you can have roommates who do their best to get everything written down and to be super fair — they can still end up where someone breaks that deal and now you have to go to small claims court and wait for months or years. It’s still pretty disappointing.”

Ries advises that if you decide to enter into a roommate agreement and are not the lease holder, it is best to have a back up plan.

“Everyone’s in a different situation, but if you’re a person who is a student, who doesn’t have a lot of personal belongings and is able to move quickly, maybe stay with a friend or a family member [if needed], then a roommate agreement might work. It certainly could be a lot more affordable than renting an entire place on your own as the tenant,” he says.

Living with the homeowner

The RTA also doesn’t apply in certain circumstances where the tenant lives with the homeowner.

“The act doesn’t apply to you if you are required to share a kitchen or bathroom with the owner – not a property manager, not a superintendent – but the owner or the owner’s spouse or either of their parents or either of their kids,” explains Ries, adding that “required” is the operative word in that rule.

“Sometimes people say, ‘well, what if I always go to [a restaurant]? What if I never use the kitchen ever? I’ll go to the bathroom at a public restroom down the street.’ No — the law says if you don’t have your own kitchen or a separate kitchen [and bathroom] that’s meant for you and other people who aren’t the owner or the owner’s immediate family, then you’re ‘required’ to share the kitchen and bathroom under that arrangement,” and the rule applies whether you actually use those facilities or not, Ries says.

He adds that such an arrangement has to be established when the tenant moves in.

“You can’t be living somewhere and all of a sudden, the owner of the property says, ‘guess what? I’m moving in’ and now you’ve lost all your rights,” he clarifies.

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It’s important to note that this only applies to the sharing of a kitchen or bathroom and does not apply to sharing other amenities like laundry, backyards, parking or a common entryway.

“I think whoever wrote that into the law half a century ago was thinking that they wanted to distinguish between living in your own private space and being part of the same household,” he says.

In such an arrangement, there is also no legal requirement to provide notice when the tenant wants to move out. The homeowner can also ask the tenant to leave at any time or ask police to remove them.

“The owner can call the police and say, I don’t want this person here. And then you have the same status as if you crashed on a friend’s couch for the night and then overstayed your welcome the next day,” says Ries.

Living in a rooming house

“You’re not going to find the phrase rooming house or a different set of rules for rooming houses in the RTA. You’ll find separate sections for certain kinds of retirement care homes, you’ll find separate sections for mobile home parks, but nothing about rooming houses,” says Ries.

Despite the lack of specifics, Ries says those renting a single room or rental unit from the landlord in a multi-room home are covered by the RTA.

“What is the rental unit? Well, it’s the space you’re paying rent for — and then there’s further debate about where that line stops and ends,” he says.

This often leads to disputes about what is considered a “common area” and what parts of the home require a notice of entry for the landlord to enter the home in a rooming house arrangement.

As per the RTA, a landlord must give a tenant 24 hours notice before entering the home and has to provide a lawful reason for entry, except in case of emergency.

It is not necessary for the tenant to be home when the landlord wants to enter the unit and the tenant cannot deny the landlord entry simply because the time is inconvenient for them or interfere with their right to enter in any way.

“There are some landlords who would take the position that your bedroom that you have in a rooming house is like your little apartment and everything else is like the hallway in an apartment building. So they would take the position that the landlord can come and go from those [common] spaces without giving notice. If it’s not yours alone, they can access it,” he says.

“I take a different view. I think that if that were right, it would mean that the landlord could walk in on you while you’re taking a shower without any notice. And that can’t be right. So I think it’s probably better to think about rooming houses as being spaces where the rental unit that you’re paying for overlaps with somebody else’s rental unit. You still have your private space like your bedroom – but a shared kitchen, a shared living room, shared bathroom – those are still spaces where we would argue the landlord needs to give 24 hours notice and needs to have a lawful reason to enter. And then the rest of your rights are the same as they would be if you were in a self-contained apartment.”

Ries says that if landlords and tenants disagree on these details, the dispute can be taken to the Landlord and Tenant Board (LTB).

“[The LTB] is composed of a number of fairly ordinary individuals whose job it is to apply the rules. But when the rules don’t exactly spell out each situation … that leaves room for the board to say, ‘well, what would most reasonable people expect in a situation like this?” says Ries.

“When a tenant believes that there’s been an illegal entry — either the landlord hasn’t given enough notice or hasn’t listed a proper reason, maybe hasn’t given notice at all, or they say that they’re there to repair something, but you find them going through your sock drawer instead — the tenant can file an application with the LTB. It’s called the ‘tenant’s rights application’ and they can ask the board to decide was this legal or not.”

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