Missing Owner, Ontario House: How the Absentees Act and the Declarations of Death Act Handle the Bills, a Lease, a Sale and a Return

A house keeps asking for decisions whether or not its owner can be found. Here is what each of Ontario’s two statutes allows at every one of them.

I’m Arthur Zhao, a real estate broker in Ontario. This article starts from one date on the calendar: the seventh anniversary of the last contact. Seven years does appear in Ontario law, in s. 2(5) of the Declarations of Death Act, 2002. But it is one of five conditions there, not a switch that flips on its own, and nothing in that Act asks the house to wait for it.

Meanwhile the property keeps producing decisions on its own schedule: carrying costs, possibly a tenant, possibly a sale, and the possibility that the owner walks back in afterwards. So instead of walking through the two statutes one at a time, I take the house’s decisions in order and set out, under each one, what the Absentees Act and the Declarations of Death Act, 2002 actually allow. Everything below is read from the statute text; how it applies to a particular family is a question for an estates lawyer.

Decision 1: Keeping the house carried (tax, mortgage, insurance, repairs)

This is the decision that arrives first, and it is the one the Absentees Act is built for.

What the Absentees Act provides. Section 1 defines an absentee as a person whose usual place of residence or domicile was in Ontario, who “has disappeared,” whose whereabouts is unknown, and about whom there is no knowledge whether they are alive or dead. Under s. 2(1), the Superior Court of Justice may declare someone an absentee once it is shown that “due and satisfactory inquiry” has been made, or it may first direct further inquiry. Section 4 then lets the court make an order “for the custody, due care and management” of the absentee’s property and appoint a committee for that purpose.

The committee’s toolkit comes from s. 6: its powers and duties, and the court’s, are the same, “with necessary modifications,” as those of a guardian of property under the Substitute Decisions Act, 1992. According to that Act (SDA s. 31(1)), a guardian of property may do anything in respect of property that the person could do themselves, except make a will, and s. 31(3) makes those powers subject to the Act and to any conditions the court imposes. Neither statute lists property tax, mortgage payments or insurance by name; they are things an owner could do, so they sit inside the general power, inside whatever limits the order sets.

The duties that come with it. SDA s. 32 makes a guardian of property a fiduciary who must act diligently, with honesty and integrity and in good faith, for the person’s benefit (s. 32(1)); keep accounts of all transactions as the regulations require (s. 32(6)); and, unless the guardian is the Public Guardian and Trustee, act in accordance with a management plan (s. 32(10)). An unpaid guardian is held to the care of a person of ordinary prudence; a paid one to the standard of someone in the business of managing others’ property (s. 32(7)–(8)).

What the Declarations of Death Act adds here. Very little, by design. It does not appoint anyone to run a living person’s property. Its link to this decision is s. 3: if a court hearing a death application is not satisfied there is sufficient evidence of death, it may make an order under the Absentees Act instead.

Decision 2: Renting the house out to cover the costs

Under an absentee order. Leasing is something an owner can do with their own property, so it falls within the SDA s. 31(1) power the committee borrows through Absentees Act s. 6. Nothing in either Act names leasing specifically. Whether a particular committee may sign a lease without going back to court therefore depends on two documents: the court order, whose conditions bind the committee under SDA s. 31(3), and the management plan the committee must follow under s. 32(10). The test for the decision itself is the fiduciary one in s. 32(1): is renting for the absentee’s benefit?

After a declaration of death. Once an order that applies for the purpose of dealing with the estate is in place, the house is estate property and the estate’s personal representative deals with it like any other estate asset. The probate process itself is outside this article. One brake is built into the statute: under s. 5, if the personal representative has reasonable grounds to believe the individual is not in fact dead, they must take no further steps to administer the estate unless a further court order under s. 4 confirms the death.

Decision 3: Selling the house

Through an Absentees Act committee. The Act does not contain a single rule saying a committee must, or need not, return to court before selling. The power to sell comes through SDA s. 31(1); any requirement for further approval comes from the conditions in the court’s order (s. 31(3)) and the management plan. So the honest answer to “does the sale need a separate court approval?” is: read the order.

When the owner lived outside Ontario. Section 8 of the Absentees Act deals with this directly. If the person’s usual residence or domicile was outside Ontario, they have an interest in land in Ontario, and a court of competent jurisdiction has already declared them an absentee, the Superior Court of Justice may appoint a committee with authority to “manage, sell or otherwise deal with” that interest in land, as the court considers in the best interests of the person and their family. The court must itself be satisfied that the person has disappeared, their whereabouts is unknown, and there is no knowledge whether they are alive or dead.

Through a declaration of death. Any “interested person” (s. 1 includes the spouse, next of kin, a named executor, a person in possession of the owner’s property, a life insurer and potential claimants, and an absentee committee) may apply under s. 2(1), with notice to the other interested persons they know of. The court can declare death under one of two subsections:

• s. 2(4), peril: the person disappeared in circumstances of peril; nobody has heard from them since, as far as reasonable inquiries show; the applicant has no reason to believe they are alive; and there is sufficient evidence to find they are dead.
• s. 2(5), absence: the person has been absent for at least seven years; nobody has heard from them in that period; the applicant has no reason to believe they are alive; and, again, s. 2(5)(e): there is sufficient evidence to find they are dead.

The order must state a date of death: under the peril route, the date the evidence suggests the person died; under the seven-year route, the date of the application (s. 2(8)). The court may choose another date if that is just and would not cause inconvenience or hardship to any interested person (s. 2(9)). Under s. 2(10), the order or a court-certified copy is proof of death “despite any other Act,” for the purposes the order covers. The actual transfer on title is a lawyer’s job, and this article does not go into the registration documents.

Decision 4: The owner turns up after a sale or a distribution

If there was an absentee order. Under Absentees Act s. 3, the court may, on application at any time, declare that the person has ceased to be an absentee and set aside the original order “for all purposes except as to acts or things done in respect of the estate of the absentee while such order was in force.” Read on its words, acts the committee carried out while the order stood, a sale included, are carved out of the setting-aside.

If there was a declaration of death. The Declarations of Death Act, 2002 sorts the property into two groups:

• Already distributed under the order: s. 6(1) says the distribution is final even if the individual is later discovered alive, and the individual is not entitled to recover the distributed property. That rule has exceptions. It does not apply to a distribution made after the personal representative had reasonable grounds to doubt the death (s. 6(2), read with s. 5). And under s. 6(3), the court may, if just, order the person who received the property to reconvey all or part of it, or to pay a specified amount, after considering all the circumstances, including any hardship to that person (s. 6(4)).
• Not yet distributed: under s. 6(7) it remains the individual’s property, is held in trust under the Trustee Act, and is returned as the court directs.

Procedurally, an interested person who had no notice of the original application may move to amend, confirm or revoke the order, and anyone with new evidence or a change in circumstances may do so with leave (s. 4(1)–(2)). When an order is amended or revoked, the court may also order property preserved or returned (s. 4(7)). Under s. 7, a person who paid money or distributed property under an order made under the Act is discharged to the extent of what was paid or distributed. Any interested person may appeal an order to the Divisional Court (s. 8).

What neither statute answers

Some questions the two Acts leave open, and I would rather mark them than guess:

A third-party buyer. Section 6 of the Declarations of Death Act talks about distribution of an estate and the people property was distributed to. It does not directly address a buyer who purchased the house from the estate before the owner reappeared. That buyer’s position is a question for a lawyer, not something to read into the text.

Whether a committee’s sale needs fresh court approval. As above, that turns on the conditions in the specific order, not on a rule in either Act.

Title paperwork. Which documents a land registry office will want in either scenario is outside these statutes, and outside this article. The real estate lawyer on the file handles it.