One tenant leaves. Another pays half of the rent. Options.

    Situations, where there is more than one person living in the apartment, can be somewhat complicated. It is especially so if each tenant pays a portion of the rent. There is often a lack of clarity about who, legally speaking, qualifies as a tenant. Also, 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 half of the rent.
    • 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 is double his usual payment.
    • He also refuses to move out, claiming that he can stay because he pays his half of the rent. 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 lives in a nice downtown Toronto condo by himself and only pays 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
    Joint tenancy
    • The difference between the two types of tenancy (joint and common) has very practical implications for the landlord.
    • Two tenants in a joint 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. Another tenant, equally responsible for the entirety of the rent. She or he must pay the entire amount of the rent to be able to stay in the condo.
    • So, if the landlord needs to prove a joint tenancy to evict the remaining tenant for non-payment of rent in the situation described above.
    Tenancy in common
    • However, past cases show that if the remaining tenant can prove a tenancy in common with the tenant who moved out, that tenant can stay in the apartment and pay half the rent.
    • This is because, in 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
    • The landlord should take the steps one would normally take to evict a tenant for non-payment of rent. 
    • In a situation with two tenants, the landlord must also show the Landlord and Tenant Board that the two tenants had a joint tenancy to evict the remaining tenant.
    • This requires much more thorough preparation for the hearing.
    How to prove joint tenancy
    • The Landlord and Tenant Board has worked out precedents on how to differentiate between joint and common tenancies.
    • There are a number of points the landlord must consider and address.
    • They include 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.

    The landlord must gather evidence and testimony and present them to the Board 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.

     

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