Something to consider when moving in with a roommate is who is going to sign and be named as a “tenant” in, the rental agreement with the landlord. In some cases, all tenants are named in the agreement. In other cases, only one person is named, however, as a rule, the landlord has the right to know who is living in the unit, and roommates should be listed as “tenants” or “occupants.”
What is a rental agreement?
The rental agreement, often referred to as the lease, is a document describing the location, the length of the tenancy, itemizing the amount of the rent, and the responsibilities of the parties involved. In some provinces, it is mandatory to complete and sign a written rental agreement, while in other provinces, an oral agreement is fine. A lease is actually just one type of rental agreement and is usually binding both parties to a certain time limit, such as six months or a year. During that time, there can be no changes to the agreement unless both parties agree. For instance, the tenant must pay the rent every month for the agreed term, and the landlord cannot increase the rent during that time.
What types of tenants are there?
Although there are similarities between provinces, there are also some differences, in the types of tenancy and the rights that go along with them. Be sure to check the Residential Tenancy Act in your province.
In BC, for instance, according to the Tenant Resource and Advisory Centre there are 3 main types of roommate situations: co-tenants, occupants, and tenants in common.
Co-tenants: This is the most common arrangement, and is when two (or more) roommates share one lease (or tenancy agreement). Both tenants are equally responsible for paying the rent, as well as making any necessary repairs if they cause damage to the premises. How the costs are divided up would be decided by the tenants themselves, hopefully in a signed Roommates Agreement. If one of the co-tenants wants to move out, he can provide notice, in writing, to the landlord.
This will, in effect, end the tenancy for any and all remaining roommates. Please note, this is the case in BC, but not in all other provinces. This could cause a problem if the other roommates want to stay on, as they would then have to sign a new tenancy agreement with the landlord, which could involve renegotiating the amount of the rent, as well as any other terms. A better option may be to check with the landlord, and see if you can replace the old roommate with a new one. This would involve simply amending the original agreement.
If one roommate moves out without giving notice to the landlord, the remaining roommate(s) and the one moving out would still be responsible for paying the entire rent. You would have to decide between you, how best to handle this. If you are the roommate left paying the bill, you may try to go after the departed roommate for his share, but you wouldn’t be able to get assistance from the Residential Tenancy Act.
Any disputes between co-tenants are not covered by the Residential Tenancy Act in BC. This kind of dispute is normally just settled between the interested parties; however, Small Claims Court is also an option.
When you sign a lease agreement with another person, check to see if it contains a “joint and several liability” clause. If you move out, without notifying the landlord, your name will still be on the lease. If the other tenant stays in the location, and at some point, stops paying rent, you could find yourself with a huge bill for the outstanding rent, even though you’re no longer living there. In fact, in some provinces, the law automatically assumes joint and several liability if the tenants move in at the same time, and have both signed the lease.
Tenants in Common: In this situation, two (or more) roommates each have their own individual rental agreements in place with the landlord. When it comes to paying rent, each roommate pays the landlord the individual amount owed. If one roommate defaults on their payment, the other roommate is not affected. It is also possible that both tenants are named on the same rental agreement, but are considered Tenants in Common, as long as the agreement specifies the amount of rent each must pay.
With regard to repairs, maintenance, and any damage to the premises, each tenant in common is responsible for their own actions.
If one tenant decides to move out, the remaining tenant is not affected in any way and will continue to pay only her agreed upon portion of the rent.
If there is a dispute between the tenants in common, they should notify the landlord in writing, and it then becomes his responsibility to settle the matter. If the landlord can’t or won’t resolve the issue, you can register a complaint with the Residential Tenancy Branch.
One problem with this type of tenancy agreement is that if one tenant moves out, the landlord can choose a new tenant with no obligation to consult with you. Not the greatest situation to be in.
Occupants: An occupant is someone who is not named on the rental agreement but is just renting part of the accommodation with the tenant who is named. As an occupant, you have no rights under the Residential Tenancy Act. If your roommate (the “tenant”) throws you out and changes the locks, there is very little, if anything, you can do to get back into the apartment as you don’t legally have a right to live in the unit. To protect yourself, you should talk to your roommate about contacting the landlord and becoming a tenant in common, or a co-tenant. Otherwise, if there is any kind of dispute, you would have to seek legal advice outside of the Residential Tenancy Act.
If you are the “tenant” and have an “occupant” living with you, but you aren’t reliant on them for their portion of the rent, and don’t really care if they stay or go, then having a strict Roommate Agreement isn’t as important. And you, as the “tenant” have control and wouldn’t want to cede too much of that to them, via the Roommate Agreement. On the other hand, if you do need their contribution to cover the rent, you should clearly outline their obligations in a well-written Roommate Agreement, which is signed by both of you. However, no matter how good your Roommate Agreement is, you, as the “tenant” are the only one legally liable to the landlord.
How can I be sure of my rights?
Unfortunately, when it comes to a lawsuit in a tenancy situation, it is not always clear how your suit will turn out, as every case is different, and a lot depends on the presiding judge. Also, the laws with regard to tenants, whether co-tenants, tenants in common, or occupants, vary from province to province.
In Alberta, for instance, if you are listed as a tenant, you have all the rights outlined in the Residential Tenancy Act for that province. If there are other conditions in the lease, such as allowing a shorter period of notice than required by the Act, and you have not signed the lease agreement, you would not be obligated to comply with these conditions.
Also, if your roommate owns the house, and you are renting a room and sharing the kitchen, living room, or bathroom with her, she is your landlord, however, because you are sharing the home with her, you are not protected by the Residential Tenancy Act. This could vary somewhat from province to province, so be sure you know what your rights are in your area, and in your particular situation.
Every province has its own laws with regard to Tenancy. Check out the Canada Mortgage and Housing Corporation’s website for fact sheets for every province.
What if you want a new roommate to move in?
You and your current roommate have signed both a Rental Agreement with the landlord and a Roommate Agreement with each other. Now you want a third roommate to move in to help out with the rent. First, you should contact the landlord, and get approval. A good landlord will likely want to check this prospective roommate out as thoroughly as he did with you and your existing roommate. He will want to look at credit history, rental history, references, and so on. He may also want to ensure that the unit can legally be occupied by three people. The lease may then be changed, so all three of you are named, giving him protection by making the new tenant liable for payment of rent, damages, and any of the other applicable obligations. Second, you should rewrite your Roommate Agreement to cover the responsibilities of all three of you.
When deciding to sign a rental agreement with one or more roommates, be sure you know what you’re getting into. Review the laws in your province, know your rights, carefully review the Rental Agreement before you sign, and know what steps to take if your relationship with your roommate goes south. Having everything documented in a solid roommate agreement can go a long way towards preventing problems from arising, or finding a solution if they do.
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