When a landlord rents the same premises to more than one tenant, the tenants will be either:
- Joint tenants to one rental agreement with each tenant responsible for all obligations under the agreement; or
- Co-tenants, each with their own rental agreement with the landlord, and each responsible only for the obligations under their lease.
Landlords and tenants are not always clear about what they intended, which may create problems of interpretation.
What are some indications of joint tenancy?
- There is one rental agreement with the names of both tenants on it;
- The tenants know each other before moving in and have chosen each other as roommates;
- One security deposit is paid to the landlord on behalf of both tenants;
- The rent is paid to the landlord on behalf of both tenants;
- The landlord provides one receipt for either the security deposit or rent with both tenants’ names on it;
- If one tenant moves out the landlord expects the remaining tenant to pay that person’s share of the rent or expects the remaining tenant to find a new roommate to share the obligations of tenancy;
- The landlord can evict both tenants if the rent is not paid in full, even if only one of the tenants has failed to pay; and
- If there are damages, the landlord may claim those damages from both tenants regardless of which tenant is responsible for the damages.
In the case of a month-to-month tenancy, one tenant can serve notice to end that tenancy even if the other tenant is not in favour or aware of the situation. However, one tenant alone cannot end a fixed term tenancy.
If one tenant serves notice to terminate a month-to-month tenancy, the tenancy is ended for all the tenants. The landlord must deal with the security deposit when the tenancy ends. If one or more of the tenants enter into a new tenancy agreement and will continue to occupy the rental unit, the landlord needs to deal with the security deposit as if the tenants were all vacating, and ask for a new security deposit from the remaining tenants, as if they are new tenants. The landlord should complete an inspection and either claim damages for repairs, or return the security deposit within seven business days payable to all the joint tenants. The joint tenants who are remaining may apply their share of the security deposit towards the new security deposit.
A tenant who has to pay for damages caused by one or more other joint tenant can pursue the other joint tenants in Small Claims Court to recover those damages.
Joint tenancy will be presumed unless there is evidence that there was a separate agreement or arrangement between the landlord and each of the tenants.
What are some indications of co-tenancy?
- Each tenant has exclusive possession of a bedroom, but share common areas with other tenants (bathroom, living area and kitchen);
- Tenants don’t know each other when they move in, or they move in at different times;
- The landlord has a separate tenancy agreement with each tenant;
- Each tenant pays their own security deposit and rent to the landlord;
- The landlord provides a receipt for payment to each tenant separately; and
- If one tenant moves out, the landlord finds another tenant to move in.
Joint tenants and separate tenants must be distinguished from sub-tenants. A tenant may sign a lease for the whole of the rental premises, and find a roommate to whom they sublet part of the rental premises. In this case, only the prime tenant has obligations to the landlord, and must pay all the rent. The prime tenant will be a landlord to the sub-tenant and may collect and hold a security deposit. The prime tenant must obtain the landlord’s consent to sublet, or include the right to sublet as a term of the lease. If the landlord’s consent is required, a landlord must not unreasonably withhold consent. A public housing authority may withhold consent for any reason.