Situations where there is more than one person living in the apartment, especially if both pay a portion of the rent, can be somewhat complicated. This is because there is often a lack of clarity about who, legally speaking, qualifies as a tenant, who is just an occupant, and, if there is more than one tenant, what the relationship between the tenants is.
Example: one tenant moves out, and the other only pays his half of the rent.
All these questions become especially important in a situation where, let’s say, a landlord rents out a downtown condo to two students. There is no written tenancy agreement made. The tenants pay rent in equal parts, and everything is OK until one of the students moves out. The remaining tenant keeps paying only his part of the rent. He refuses to pay the full amount of the rent, which would be double his usual payment. He also refuses to move out, claiming that he’s entitled to stay because he pays his half of the rent, and it’s not his problem that the other tenant hasn’t paid rent.
In this situation, the landlord can be in a sort of trap. Logically, it would make sense that the landlord can just evict the remaining tenant for non-payment of rent. It doesn’t make sense that a tenant can live in a nice downtown Toronto condo by himself and only pay half the rent. Legally, however, evicting the remaining tenant for non-payment may not be as easy. The question will become whether the tenants had a joint tenancy, or a tenancy in common.
Joint and Common Tenancies: the differences and implications
The difference between the two types of tenancy (joint and common) has very practical implications for the landlord. Two tenants in a joint tenancy tenancy are both equally responsible for the entire amount of the rent. This means that it doesn’t matter if one of them moved out: if one joint tenant moved out, the other tenant, equally responsible for the entirety of the rent, must pay the entire amount of the rent to be able to stay in the condo. So, if the landlord can prove that there was a joint tenancy, he or she can evict the remaining tenant for non-payment of rent in the situation described above.
However, cases resolved by the Landlord and Tenant Board in the past show that if the remaining tenant can successfully show that he had a tenancy in common with the tenant who moved out, he can stay in the apartment if he pays half the rent. This is because in the case of a common tenancy, each tenant is only responsible for his or her portion of the rent. The two tenancies are entirely separate – each tenant pays half the rent and uses half the apartment. If one tenant moves out or doesn’t pay, this has no implication on the remaining tenant. The remaining tenant can stay as long he pays his portion of the rent.
Evicting a tenant when the other tenant stopped paying rent
All this means that in addition to taking all the steps one would normally take to evict a tenant for non-payment of rent, the landlord in a situation with two tenants must also show the Landlord and Tenant Board that the two tenants had a joint tenancy in order to be successful in the eviction effort. This requires much more thorough preparation for the hearing.
Overtime, the Landlord and Tenant Board has, with precedents, worked out how to differentiate between joint and common tenancies. There are a number of points which the landlord must consider and address, including how the two tenants used the apartment, how they made payments, how they communicated with the landlord, and what the rental agreement (verbal or otherwise) was at the outset of the tenancy. Evidence and testimony must be gathered and presented in order to establish that the tenancy was, indeed, joint.
If you find yourself in a situation where you had two tenants and only one continues to pay, please contact us for an assessment of your case. We will help you assess your chances of success and, if retained, will ensure that the argument for joint tenancy is as strong as it could be.
If you only have one tenant and the tenant doesn’t pay rent, check out our post on how to evict a tenant for non-payment of rent.