By A.J. Keilty, President, KEILTY Realty Management
Sometimes, yes. Being named on the lease is good evidence of who a tenant is in Ontario, and it is not the test. The Residential Tenancies Act, 2006 defines a tenant to include “a person who pays rent in return for the right to occupy a rental unit”, and that definition is not exhaustive. A regulation can make someone a tenant who never signed anything. And if you leave the wrong person in place for sixty days, the Act can convert them into one whether you meant it or not.
So the practical question is not whose name is on the paper. It is which of four categories the person in the unit falls into: a tenant, an occupant, a subtenant, or an unauthorized occupant. Each carries different rights, a different application, and a different deadline. Here is how to tell them apart, and what the clock is on each one.
The short version. An occupant living alongside the tenant has no standing at the Board and needs no consent from you. A spouse can become a tenant on a principal-residence test with no signature at all. And where a tenant hands the unit over to someone else, you have sixty days from the day you find out, on an A2 rather than an L2, before the Act starts treating that person as having taken over the tenancy.
No, and the Board says so in terms. Interpretation Guideline 21, Landlords, Tenants, Occupants and Residential Tenancies, dated 2022-03-08, states that not everyone named as a tenant in a tenancy agreement will meet the definition of tenant under the Act, and that where the agreement is unclear the Board will determine who is a tenant by looking at a number of factors “such as” who entered into the agreement with the landlord, who is entitled to occupy the unit under it, who pays the rent, and who deals with tenancy issues with the landlord. Note the words “such as”. That is an open list, not a four-part test.
Two things push in the same direction. Section 202 (1) requires the Board, in making findings on an application, to ascertain the real substance of all transactions and activities relating to a residential complex or a rental unit and the good faith of the participants, and it may disregard the outward form of a transaction in doing so. And the Guideline reports that in Jemiola v. Firchuk, [2005] O.J. No. 6085, the Divisional Court “stated that the definition of ‘tenant’ is broad and inclusive and should be broadly and liberally construed”. The Court then noted, however, that a child who was an occupant of the unit in which their mother was the tenant, who wanted to stay after her death and who made a single rent payment afterwards, was not a tenant.
That pairing is the whole topic in miniature. The definition is generous, and generosity is not the same as automatic. Note also that a Guideline is not law. The disclaimer printed on the face of Guideline 21 says that “a Member is not required to follow a Guideline and may make a different decision depending on the facts of the case.”
It cuts the other way too. In Parsons v. Twin Elm Estates, [2001] O.J. No. 1907, on the Guideline's account, the Divisional Court stated that what is now section 202 requires the Board to find the true facts about the relationship between a landlord and a tenant, regardless of the form in which that relationship may be set out. The Guideline then gives its own example rather than the Court's: where a person guarantees the tenant's rent and is named as a tenant in the agreement, the guarantor does not become a tenant if the guarantor has no right to occupy the unit. Being named, on that example, is not enough on its own.
Subsection 2 (1) gives the definition in full, and both halves of it matter:
“tenant” includes a person who pays rent in return for the right to occupy a rental unit and includes the tenant's heirs, assigns and personal representatives, but “tenant” does not include a person who has the right to occupy a rental unit by virtue of being, (a) a co-owner of the residential complex in which the rental unit is located, or (b) a shareholder of a corporation that owns the residential complex.
Read the verb. It is “includes”, not “means”, which is why the Guideline treats it as non-exhaustive. The exclusions are narrow and they are about ownership, not paperwork. On the co-owner exclusion, the Guideline reports that in Warraich v. Choudhry, 2018 ONSC 1267, the Divisional Court found that the Board should look only at whether the person has a legal ownership interest in the property, and that the Board does not have authority to determine whether someone has an equitable interest.
Note also what a tenancy agreement is under the same subsection: a written, oral or implied agreement between a tenant and a landlord for occupancy of a rental unit, including a licence to occupy. There is no requirement anywhere that it be signed, or written, or that it name everyone living there.
An occupant is the ordinary case, and the answer to the second half is nothing. Guideline 21 records that there is no definition of occupant in the Act, and that for the purposes of proceedings at the Board an occupant may be considered a person who is not a tenant but who lives in a rental unit as their principal place of residence.
The Guideline is blunt about the consequences. It says a finding that a person is an occupant means the occupant has no protection or rights in proceedings at the Board under the Act, and that any rights the person may have outside the Act must be sought in a court. It also says, and this is quotable exactly as written, that “An occupant or roommate lives in the rental unit at the invitation and at the indulgence of the tenant and under the terms of the tenancy.”
Three consequences follow, and they are worth naming:
There is a limit on numbers, and it is not a lease clause either. Section 67 (1) lets a landlord give notice of termination if the number of persons occupying the unit on a continuing basis results in a contravention of health, safety or housing standards required by law. Section 67 (2) sets the termination date at not earlier than the 20th day and requires the tenant, within seven days, to reduce the number to comply. Section 67 (3) voids the notice if the tenant sufficiently reduces the number within seven days after receiving it. So the ground is a legal standard being breached, not your preference about how many people live there.
Not as such, and the word does no legal work at all. Searched on 2026-08-28, the string “roommate” appears zero times in the Act and zero times in O. Reg. 516/06. The only place “occupant” appears in the whole of that regulation is section 41 (7), where a rent reduction notice is to be addressed to “the tenant or occupant” of the unit, which is an addressing convenience and confers nothing.
Guideline 21 supplies the working description: “A ‘roommate’ is a person who, like an occupant, shares a room, a rental unit, or part of it with a tenant, but is not a tenant.” It adds that a tenant does not become a landlord to their roommate or occupant within the meaning of that term in the Act.
The Guideline also closes off the obvious workaround. A tenant can let people occupy the unit with them, but cannot subdivide the unit into more than one rental unit. On its example, a tenant renting a whole house may let someone live in and have exclusive use of the basement, and the house including the basement remains one rental unit, with that person a roommate or occupant carrying no protection under the Act.
On a principal-residence test, under a provision the definition in the Act gives no hint of. Paragraph 4 of subsection 241 (1) is the enabling power, allowing regulations prescribing persons to be included in or excluded from the definition of “tenant” in subsection 2 (1). What was made under it is section 3 of O. Reg. 516/06, headed Definition of “tenant”, sitting in Part I of the regulation.
Subsection 3 (2) provides that if a tenant vacates a rental unit without giving a notice of termination under the Act and without entering into an agreement to terminate the tenancy, and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act.
Read what the test is and what it is not. It is the spouse's principal residence. The word “lease” does not appear in section 3 at all, and there is no requirement that the spouse be named, have applied, or have paid anything. Subsection 2 (1) defines a spouse as a person to whom the person is married, or with whom they are living in a conjugal relationship outside marriage where the two have cohabited for at least a year, are together the parents of a child, or have together entered into a cohabitation agreement under section 53 of the Family Law Act.
Subsection 3 (3) is a carve-out, and note that it applies to subsection (2) only. It opens “Subsection (2) does not apply if any one or more of the following criteria are satisfied” and then lists five:
Paragraph 4 is the one to diarize, because it is the only route on this list that you control. Where the departing tenant left owing rent, serving the approved form within 45 days starts a 15 day clock on the spouse. Miss the 45 days and you fall into paragraph 5, where the spouse's window runs all the way to the issuing of an order instead.
Different subsection, different clock, and it is the one place in section 3 where the carve-outs above do not reach. Subsection 3 (1) provides that if a tenant dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” unless the spouse vacates the unit within the 30 day period described in subsection 91 (1) of the Act.
Section 91 (1) is the source of those 30 days: if a tenant dies and there are no other tenants of the rental unit, the tenancy is deemed to be terminated 30 days after the death. Note the gate in that provision, because it does a lot of work. Where there is another tenant, section 91 does nothing at all.
So the death rule carries one condition inside its own subsection, while the vacating rule carries five in a separate one. Do not read the five criteria across to a death file. We set out the rest of that regime, including what you may and may not do with the property in the unit, in what happens when a tenant dies in Ontario.
Getting this wrong sends you to the wrong application, so spend two minutes on it. Subsection 2 (2) says a sublet refers to the situation where the tenant vacates the unit, gives one or more other persons the right to occupy it for a term ending on a specified date before the end of the tenant's term or period, and has the right to resume occupancy after that date. Guideline 21 adds the landlord's consent as a fourth element of an authorized sublet under section 97.
That definition does three jobs at once:
The consent rules are not symmetrical. On an assignment, section 95 (2) lets you consent or refuse when the tenant asks in general terms, and section 95 (3) lets you consent, refuse the named person, or refuse the assignment outright. The reasonableness duty in section 95 (5) attaches only to refusing consent to a named potential assignee under clause 95 (3) (b). On a sublet, section 97 (2) says only that a landlord shall not arbitrarily or unreasonably withhold consent to the sublet to a potential subtenant, and there is no equivalent power to refuse in the abstract. We took that apart in can a tenant sublet or assign a lease in Ontario.
An A2, not an L2. The L2 instructions, dated August 2023, contain no reason for an unauthorized occupant at all: the L2's three reasons are a notice you gave, abandonment, and a superintendent's unit.
The A2, Application about a Sublet or an Assignment, is the right form. Its instructions, also dated August 2023, give as Reason 1 for a landlord that the tenant transferred the tenancy to another person without the landlord's consent, and that this person is an unauthorized occupant. The statutory basis is section 100 (1), under which a landlord may apply for an order terminating the tenancy and evicting both the tenant and the person to whom occupancy was transferred.
Two features make this route unusually light:
The deadline is section 100 (2): an application must be made no later than 60 days after the landlord discovers the unauthorized occupancy. The A2 instructions put it the same way, telling you to apply no later than 60 days after finding out and to fill in the date you were first aware.
Watch the fee, because it is not the usual one. The A2 sits at $201 in the landlord fee table on the Board's forms, filing and fees page, alongside the L6, L7, L8 and A4, and at $53 in the tenant table. Neither row carries the Tribunals Ontario Portal discount that the L1, L2, L3, L9 and L10 row carries at “$201 or $186 through the Tribunals Ontario Portal”. The page adds: “Please note that LTB fees are non-refundable.” Those figures were read on 2026-08-28.
Something happens, and the Act and the Board's own Guideline describe it in different words. Carry both, because the wording matters to what you can do next.
Guideline 21 puts it flatly. It says that if the landlord does not apply within 60 days after discovering the unauthorized occupancy, “the occupant becomes a tenant”.
The Act gets there by a different route. Section 100 (2) is a limitation period and nothing more, and it says nothing about anyone's status. The status provision is section 104 (4), headed Deemed assignment, under which a person's occupation of a rental unit is deemed to be an assignment of the unit with the consent of the landlord as of the date the unauthorized occupancy began, if three things are all true: no tenancy agreement was entered into under section 104 (1) or (2) within the section 104 (3) window, the landlord did not apply under section 100 within 60 days of discovering the unauthorized occupancy, and neither the landlord nor the tenant applied under section 101 within 60 days after the end of the subtenancy.
Two details in that provision are easy to miss. The deeming is retroactive to the date the occupancy began, not to the expiry of the sixty days. And it is an assignment with consent rather than a fresh tenancy, which is what decides the rent question below.
On the Act's route the consequence for your rent follows from the text, because section 95 (8) says an assignment leaves the tenancy agreement continuing on the same terms. The Guideline's shorter formulation says the occupant becomes a tenant and stops there, without addressing the terms. Reading the two together, our own view is that neither route hands you a fresh agreement to price, and that is the assumption we work on. It is a reading of the provisions rather than something either source states outright.
In two situations, yes, and it is the better outcome where the person is someone you would have rented to anyway. Section 104 (1) lets a landlord negotiate a new tenancy agreement with a person who occupies a unit as a result of an assignment of the unit without the landlord's consent. Section 104 (2) lets a landlord negotiate a new agreement with an overholding subtenant, but only where the tenant has abandoned the rental unit.
Note the limits. Neither subsection is written for a person who simply moved in alongside a tenant who is still there, because that is an occupant and there is nothing to negotiate. And section 104 (2) carries an abandonment condition that section 101 does not, so the overholding subtenant route and the new-agreement route do not run in step.
Compared with the A2, the agreement is the lighter road where it is available. The application needs proof of the transfer and of your discovery date. The agreement needs a signature and a date. Where the person is unsuitable or unwilling, the application is what you have, and it at least requires no notice first.
This is the money in the topic, and it turns entirely on which of the two paths above you took.
Section 104 (3) provides that sections 113 and 114 apply to a tenancy agreement entered into under section 104 (1) or (2) if it is entered into no later than 60 days after the landlord discovers the unauthorized occupancy. Section 113 then says that, subject to section 111, the lawful rent for the first rental period for a new tenant under a new tenancy agreement is the rent first charged to the tenant. So a new agreement inside the window is priced as a new tenancy.
Let the window close and you get the opposite. Section 104 (4) produces a deemed assignment, and section 95 (8) provides that where a tenant has assigned a rental unit the tenancy agreement “continues to apply on the same terms and conditions”. That subsection then splits liability by period: the assignee answers for breaches relating to the period after the assignment, the former tenant for the period before. Section 113 never engages, because there is no new tenancy agreement. The rent already in place carries over.
Two qualifications on the good path. Section 104 (3) pulls in section 114 as well as section 113, and section 114 imposes written notice obligations about lawful rent where an order under paragraph 6, 7 or 8 of subsection 30 (1) is in effect on the unit. And section 113 is expressly subject to section 111, whose subsection (1) is the general prohibition on charging more than the lawful rent permitted under that Part, with subsections (2) and (2.1) carrying the prompt payment and rent-free-period discount rules and their prescribed calculations.
Not by itself, and there is a provision that says so. Section 103 (1) entitles a landlord to compensation for the use and occupation of a rental unit by an unauthorized occupant. Section 103 (2) then provides that a landlord does not create a tenancy with an unauthorized occupant by accepting compensation for the use and occupation of the rental unit, “unless the landlord and unauthorized occupant agree otherwise”.
Keep that closing clause attached whenever you rely on the section. The protection is defeasible by agreement, so accepting money is safe and accepting money alongside a conversation about them staying on is a different thing. Note too that section 103 (2) protects against creating a tenancy. It does not pause the sixty days in section 100 (2), which runs from discovery regardless of what you are collecting in the meantime.
Take a monthly tenancy in Peterborough at $1,600, rent due on the first. On 2026-09-14 you learn that the tenant moved out during the summer and that a friend of theirs has been living in the unit and paying you since. Three dates follow, and one of them is the only one that cannot be recovered.
Now the part that costs money. If you sign a new agreement on or before 2026-11-13, section 113 sets the lawful rent at what you first charge that person. If you let both routes lapse and section 104 (4) is satisfied, the $1,600 carries over into a deemed assignment dated back to whenever the friend moved in during the summer. The difference is not the sixty days of compensation. It is the rent for as long as that tenancy runs.
Keep the triggers straight, because sixty days turns up repeatedly here and it does not always run from the same event. Sections 100 (2), 104 (3) and 104 (4) (b) all run from your discovery. Sections 101 (2) and 104 (4) (c) run from the end of the subtenancy. And paragraph 2 of section 3 (3) of the regulation runs from the day the tenant vacated. Writing “60 days” in a file note without writing what it runs from is how these get missed.
An order is not money. On a file where the person owing it may have no assets and no lease, that distinction is the whole of it, and three of the limits are statutory.
There is a cheaper route than any of this, and it is prescribed. Item 6 of section 17 of O. Reg. 516/06 exempts from subsections 134 (1) and (3) any payment by a tenant, former tenant, subtenant or former subtenant in settlement of a court action or potential court action, or an application or potential application to the Board. A negotiated payment, documented as settling an application you could otherwise bring, is lawful and costs no filing fee. Read the list of payers before you rely on it, though. It names a tenant, former tenant, subtenant or former subtenant, and an unauthorized occupant is none of those, so the exemption fits a settlement with the departing tenant more comfortably than one with the person who stayed.
Then none of the above may apply. Clause 5 (i) takes outside the Act living accommodation whose occupant or occupants are required to share a bathroom or kitchen facility with the owner, the owner's spouse, child or parent or the spouse's child or parent, where that person lives in the building in which the accommodation is located.
Read the two conditions together. The sharing has to be with the owner or one of those named relatives, and that person has to live in the building. Sharing with another tenant does not engage the clause, and neither does an owner who lives elsewhere. Where the answer is genuinely in doubt, an A1, Application about Whether the Act Applies, asks the Board to decide, at $53 on the same fee page.
Different regimes, and on social housing almost none of this post applies. Start with subsection 3 (4) of the regulation, which provides that subsections 3 (1) and 3 (2), the whole spousal tenant rule, do not apply to a rental unit described in section 7 of the Act, a unit in a care home to which Part IX applies, or a unit to which section 6 of the regulation applies. Guideline 21 summarizes the same point by saying the extended definition of tenant with respect to a spouse does not apply to social housing, care homes and certain types of government housing.
Then read section 7 (1) itself, because it goes much further than the spousal rule. For the units it lists, it disapplies sections 95 to 99, subsection 100 (2), and sections 101, 102, 104 and 111 to 115, among others. That is the assignment and sublet machinery, the sixty day limitation period, the new-agreement power, and the lawful rent provisions, all switched off together. If you manage a unit that falls inside section 7, do not run the analysis in this post on it. Work out first which of these sections reaches you at all.
A non-profit housing co-operative is a separate regime again, under Part V.1 of the Act, dealing with members and occupancy rights rather than tenants and tenancies. Note that section 202 (2) expressly says the real-substance rule in section 202 (1) does not apply to an application made under Part V.1. If you are dealing with a member of a co-operative, work from Part V.1 and do not read the tenant provisions across.
This part is practice rather than law, and the first item is the one that decides the rest.
If the tenant has vanished rather than handed the unit to someone, that is a different analysis again, and we walked through it in what happens if a tenant abandons a rental unit in Ontario.
An owner with one or two units can work this out. The categories are learnable in an afternoon and the forms are public. What is harder is noticing in time. Every deadline here runs from a day you have to recognize as significant while it is happening, on a file where nothing may have gone visibly wrong and the rent is still arriving from somebody.
That is the part KEILTY is actually being asked to do on a building: knowing who is in each unit, recording the day that changes, and deciding within a week rather than within two months. If you own a building and you are not sure who is in every unit right now, our small multi-family page sets out how we run it.
If you would like a second look at who is on your leases and who is actually living in your units, request a free rental evaluation and we will go through it with you.
This post is general information about Ontario residential tenancy law as of 2026-08-28, not legal advice. Legislation, regulations and tribunal practice change. For advice on a specific property or situation, speak with a lawyer or licensed paralegal.
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