My Tenant Moved Out After a Breakup, but Their Partner Stayed. Is That Person Now My Tenant?
When the person on the lease leaves and the person who was never on it stays, Ontario’s Residential Tenancies Act gives a landlord three paths and one 60-day clock. Here is how each path works, and where the answer belongs to a lawyer or the Landlord and Tenant Board.
If the tenant moves out and a partner who never signed the lease stays, is that partner automatically the landlord’s tenant in Ontario?
Not automatically, but it can happen by default. Under s.104(4) of the Residential Tenancies Act, if the landlord neither signs a new tenancy agreement with the occupant nor applies to the Landlord and Tenant Board under s.100 within 60 days of discovering the unauthorized occupancy, the occupant’s stay is deemed an assignment with the landlord’s consent, dated back to when the occupancy began. Whether the s.100 route fits a partner who was already living there is a fact question for a lawyer or the LTB.
Source: Residential Tenancies Act, 2006, S.O. 2006, c. 17, ss. 100, 103, 104 (e-Laws, current consolidation, 2026)
The message usually arrives as an ordinary notice: “I’m moving out at the end of next month. My ex is going to keep living in the unit.” The first sentence is the tenant ending their own tenancy. The second sentence is the one that matters legally, because it tells you, in writing and with a date on it, that someone who never signed the lease intends to stay.
I’m Arthur Zhao. Ontario law does not leave you guessing about what that second person is. It gives you three options, and if you pick none of them, the Residential Tenancies Act picks one for you. Below are the three options, the conditions and time limits for each, and then the separate question of whether the person staying is a married spouse or an unmarried partner, which brings in a different statute.
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Option A: Sign a new tenancy agreement with the person who stays
Section 104(1) of the Act says that if a person occupies a rental unit as a result of an assignment made without the landlord’s consent, the landlord may negotiate a new tenancy agreement with that person. Nothing obliges you to; it is a choice.
Condition. You and the occupant agree on terms. If they do not want a lease in their own name, or you do not want them as a tenant, Option A is off the table and you are choosing between B and C.
Time limit. Under s.104(3), if the new agreement is entered into no later than 60 days after you discover the unauthorized occupancy, ss.113 and 114 apply to it. Section 113 says the lawful rent for the first rental period of a new tenant under a new tenancy agreement is the rent first charged to that tenant, subject to s.111. In plain terms, inside the window the new lease is treated as a fresh tenancy for rent purposes. Section 114 adds a written-notice duty only where certain Board orders under s.30(1) are in effect for the unit.
Consequence. The occupant becomes your tenant on the terms you both sign. The departing tenant’s tenancy does not end just because they leave: s.37(1) says a tenancy may be terminated only in accordance with the Act, which for them usually means a tenant’s notice under s.47 with the notice periods in s.44, and s.37(2) says a tenancy ends on the notice’s termination date if the tenant vacates in accordance with it. What happens if you sign after day 60 is not spelled out in s.104(3); if you are past the window, ask a lawyer how the rent rules apply before you set a number.
Option B: Apply to the Landlord and Tenant Board under section 100
Section 100(1) covers a tenant who transfers the occupancy of a unit to someone other than through an authorized assignment (s.95) or an authorized sublet (s.97). In that case the landlord may apply to the Board for an order terminating the tenancy and evicting both the tenant and the person who received the occupancy.
Condition. The facts have to fit “transfers the occupancy.” A partner who moved in years ago and simply stayed when the tenant left is not the textbook case of a tenant handing the keys to a stranger, and the Act does not say how s.100 treats it. That is a question to put to a lawyer or licensed paralegal, or to raise with the LTB, before you file. Because your tenant gave you a notice of termination, s.77 (an application based on a tenant’s notice) also exists; which application fits your facts is part of the same question.
Time limit. Under s.100(2), the application must be made no later than 60 days after the landlord discovers the unauthorized occupancy. Miss it and this route is closed.
Consequence. If you apply, s.100(3) lets you also ask for compensation from the occupant for use and occupation of the unit, provided they are in possession when you apply. Even then the outcome is the Board’s: under s.83(1), on any eviction application the Board may refuse or delay eviction having regard to all the circumstances, and under s.83(2), if there is a hearing it must consider doing so.
🚨No lock changes, no self-help eviction. Section 39 of the Act says a landlord shall not recover possession of a rental unit subject to a tenancy unless the tenant has vacated or abandoned it, or a Board eviction order has authorized it. Section 24 bars a landlord from altering the locking system during a tenant’s occupancy without giving the tenant replacement keys, and s.233(b) makes knowingly doing so contrary to s.24 an offence. Whether the person staying is your tenant may be unsettled; that uncertainty is a reason to go through the Board, not around it.
Option C: Do nothing, and section 104(4) decides for you
This is the option you end up with if you choose nothing. Section 104(4) says 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 all of the following are true:
- (a) no new tenancy agreement was entered into under s.104(1) or (2) within the s.104(3) period;
- (b) the landlord did not apply under s.100 to evict the person within 60 days of discovering the unauthorized occupancy; and
- (c) neither the landlord nor the tenant applied under s.101 (the overholding-subtenant route) within 60 days after the end of a subtenancy.
The three conditions are joined by “and,” so the deeming happens only when every one of them is met. In a breakup case with no sublet, condition (c) will rarely be the one that stops it.
Consequence. Section 95(8) sets out what an assignment does: the tenancy agreement continues on the same terms and conditions, the assignee is liable for breaches relating to the period after the assignment, and the former tenant remains liable for the period before it. Read together with s.104(4), that points to the partner stepping into the existing lease at the existing rent, with the assignment dated to when their occupancy began. How a Board member would apply this to your facts is again a question for a lawyer or the LTB, but you should assume that silence for 60 days is not neutral.
Taking money from the person who stays: rent or compensation?
💡 My view is that the most valuable thing you can do in the first week is fix the date you discovered the occupancy. Both s.100(2) and s.104(4)(b) count 60 days from discovery, not from the day the partner moved in and not from the day the tenant leaves. A tenant’s notice that says “my ex will keep living here” is itself a dated piece of evidence of when you found out. Save it, note when you received it, and work back from that date to the 60-day deadline. If you only learned about the occupant later, write down how and when, because the start of the clock is the first thing anyone will argue about.
The Family Law Act layer: a married spouse is not the same as an unmarried partner
Everything above is the Residential Tenancies Act. When the person staying was married to your tenant, Part II of the Family Law Act may also be in play, and it is written around spouses, not landlords.
Section 18(1) defines a matrimonial home as every property in which a person has an interest and that is, or at separation was, ordinarily occupied by the person and their spouse as their family residence. Section 17 says property in Part II means real or personal property. Section 19(1) gives both spouses an equal right to possession of a matrimonial home, and s.19(2) adds that where only one spouse has an interest, the other spouse’s right is personal as against the first spouse. Under s.24(1), a court may, regardless of ownership and despite s.19, make orders about the home, including directing that one spouse be given exclusive possession.
Part II uses the s.1(1) definition of spouse: two people who are married to each other, or who entered into a void or voidable marriage in good faith. Unmarried cohabiting partners are added only in Part III, which deals with support (s.29). So an unmarried partner has no Part II matrimonial-home rights to rely on, and their position with you rests on the Residential Tenancies Act alone.
What the statute text does not answer is whether a rented unit, where the spouse’s “interest” is a tenancy, is a matrimonial home under s.18, or whether a s.24 possession order binds a landlord who is not a party to the family case. Those are lawyer questions. If you are told there is a family court order about the unit, ask for a copy and give it to your own lawyer before you act on any of the three options.
What to do this week
Grouped by type, not by date, because most of these happen at the same time.
- ☐Save the tenant’s notice and record the date and time you received it.
- ☐Write down the date you discovered the partner intends to stay, and how you found out.
- ☐Calendar the 60-day mark from that discovery date for both s.100(2) and s.104(4).
- ☐Label every payment from the person staying, in the receipt and in your messages, as either rent under a signed lease or compensation for use and occupation.
- ☐Keep a copy of any family court order you are shown about the unit.
- ☐Do not change the locks or remove belongings to get the unit back.
- ☐Do not accept money described as “rent” from the person staying unless you have decided on Option A.
- ☐Do not let day 60 pass without choosing Option A or Option B, unless you have decided to accept Option C.
- ☐Do not assume a married spouse and an unmarried partner are in the same position.
- ☐Ask a lawyer or licensed paralegal whether s.100 or s.77 fits your facts before filing.
- ☐Ask the LTB about its current application forms and filing process.
- ☐Ask a family lawyer whether the Family Law Act affects your unit if the occupant is a married spouse.
Your Tenant Put the Unit on Airbnb Without Asking: What an Ontario Landlord Can Actually Do →Ontario Roommate Co Tenancy Rules →Why Ontario’s Matrimonial Home Is Treated Differently: What Every Couple Must Know Before Selling, Mortgaging, or Separating →First-Time Renter Guide →
Frequently Asked Questions
Does my tenant who moved out still owe me rent?
Possibly. If they left without a notice that complied with the Act, s.88(1) of the Residential Tenancies Act measures arrears to the earliest termination date a proper notice could have given, which for a monthly tenancy is at least 60 days and the last day of a rental period under s.44(2). If the partner’s stay becomes a deemed assignment under s.104(4), s.95(8)(b) keeps the former tenant liable for the period before the assignment. A lawyer or paralegal can tell you which rule your dates fall under.
Can I raise the rent for the person who is staying?
Not freely; it depends on which path you take and when. Under s.104(3) of the Residential Tenancies Act, a new agreement signed no later than 60 days after you discover the occupancy is governed by s.113, which makes the lawful rent the rent first charged to the new tenant. If instead the stay becomes a deemed assignment under s.104(4), s.95(8) continues the existing tenancy agreement on the same terms and conditions, so the starting point is the current rent, with any later increase following the Act’s ordinary rent-increase rules.
What if the person staying is married to my tenant?
Then Part II of the Family Law Act may also apply. Section 19(1) gives both spouses an equal right to possession of a matrimonial home, and s.24(1) lets a court order exclusive possession to one spouse. Whether a rented unit counts as a matrimonial home, and whether such an order binds the landlord, is not settled by the statute text, so ask a family lawyer. An unmarried partner does not have these Part II rights.
Can I just change the locks once my tenant is gone?
No. Section 39 of the Residential Tenancies Act lets a landlord recover possession only if the tenant has vacated or abandoned the unit or the Landlord and Tenant Board has ordered eviction, and the person still living there may be, or may become, your tenant. Section 24 bars changing locks during a tenant’s occupancy without replacement keys, and s.233(b) makes knowingly doing so an offence. The route to possession is a Board application.
Does it matter if there are children living in the unit?
It can. On any eviction application, s.83 of the Residential Tenancies Act lets the Landlord and Tenant Board refuse or delay eviction having regard to all the circumstances, and requires it to consider doing so if there is a hearing. In a family court case, s.24(3)(a) of the Family Law Act makes the best interests of the children the first factor a court considers before ordering exclusive possession of a matrimonial home.
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