In Victoria’s tight and increasingly unaffordable rental market, many people find that their only option is to move into a space in someone else’s home. While TAPS is only able to help people who are tenants under the Residential Tenancy Act (Act), and most people in these circumstances are not legally tenants, we do get a lot of questions about these types of rental situations. In the following dialogue, we explore some of the questions that come up.
I’ve been having a hard time finding an apartment in Victoria that I can afford. A friend of mine has told me I can move into her apartment and rent her spare room. Does my friend need to get permission from her landlord or can I just move in?
Your friend’s tenancy agreement might restrict the number of occupants that can reside in the unit, or it might state that prior permission from the landlord is required before an occupant can move in. Depending on the terms set out in the tenancy agreement, her landlord may have the right to refuse permission. Therefore, it is a good idea for your friend to talk to her landlord about these plans and to get proper permission if it is required.
What happens if I move in and my friend has not got her landlord’s permission?
Your friend may be in breach of her tenancy agreement, which could be grounds for her landlord to give her an eviction notice. If your friend gets an eviction notice and believes that she has not breached the terms of her tenancy agreement, she can dispute the issue at a Residential Tenancy Branch dispute resolution hearing.
Can my friend’s landlord take back permission for me to rent my friend’s room once he or she has given permission and I have moved in?
No, the landlord cannot rescind permission once it is already given. However, your friend should note that the permission she has obtained may only apply to you, and she may have to get additional permissions if she wants to have anyone else move in.
If I do move in, will my friend be my landlord or will her landlord by my landlord?
If you move into your friend’s apartment as an occupant, you do not have a landlord–tenant relationship with either your friend or your friend’s landlord. You would not be considered a tenant (even if you have a written contract with your friend) and you would not have rights or responsibilities under the Act.
I’ve also seen some ads online where people are renting out their spare room. If the person I end up renting a room from is not a friend, would I be considered a tenant then?
The same rules and procedures in respect to occupants apply whether the person you are renting from is a friend or someone unknown to you.
I’ve been looking at some other ads online where the person is renting out a room in their house or condo. What happens if the person whose place I move into owns their residence? Would I have rights as a tenant in that case?
The Act excludes living arrangements where a person is renting a room and shares common facilities with the owner of the property. This means that if you move into a house and share bathroom or kitchen facilities with the owner of the house, you would be considered an occupant.
How is this situation different from someone who lives in a room in a rooming house?
The key factor is whether or not you share a bathroom or kitchen with the owner of the house or condo. When a number of people rent rooms in a single house and they each have separate tenancy agreements with the owner, and the owner does not live with them, they are considered tenants in common (tenants who live together but are not bound by the same terms). When a number of people rent rooms in a single house and they share kitchen or bathroom facilities with the owner of the house, who lives with them, they are considered occupants (with no legal rights under the Act).
What happens if my friend wants me to move out? Does she have to give me an eviction notice?
The Act does not apply to your living situation at all, and therefore you are not entitled to a specific amount of warning time if your friend wants you to move, and your friend does not have to give you any explanation for why she wants you to move. This also means that you cannot apply for dispute resolution through the Residential Tenancy Branch. However, if your friend does ask you to move out, you could try negotiating with her to come up with a reasonable move-out plan that works for both of you.
What happens if I pay the rent and the next day my friend asks me to leave? Do I have the right to get my rent money back?
Again, as an occupant, you do not have protections under the Act. This means that you do not have any specific residential tenancy rights or obligations. Any issues or disagreements that you come across in relation to your living arrangement cannot be resolved through the Residential Tenancy Branch. It might be possible for you to resolve your issue about rent money through other civil processes. Please contact TAPS for relevant referrals.
If I find another place to live, do I need to give a certain amount of notice?
No, there is no legislation that requires an occupant to provide a certain amount of notice to vacate. However, if you find another place to live you may want to discuss this with your friend in order to come up with a reasonable plan that works for both of you.
I am concerned about not having legal rights under the Act. Are there any other options in terms of living arrangements with my friend?
If you want to have residential tenancy rights, you might want to talk to your friend and her landlord about the possibility of becoming a co-tenant or a tenant in common. A co-tenancy is when your friend’s tenancy agreement is formally amended so that you are included as a tenant. In a co-tenancy, you and your friend become roommates under the same agreement, and you are jointly responsible for the same terms and conditions. In a co-tenancy you would be legally responsible for damages caused by your friend, and vice versa.
Tenants in common are roommates who have separate tenancy agreements with the same landlord. This means that you would have a tenancy agreement with the landlord that is separate from your friend, and that you would be solely accountable for fulfilling the terms of the agreement. In this situation, if you were unable to pay your rent one month, you might get an eviction notice, but your friend would not.
Is there anything else I should know?
There are sometimes unique situations where an arbitrator with the Residential Tenancy Branch will consider an original tenant living in the rental unit with a third party to be a sublet. In this situation, a landlord–tenant relationship would exist and the third party would have rights and responsibilities under the Act. For more information about this, please speak to a TAPS tenancy advocate.
While we do get a lot of questions from people who are occupants, TAPS advocates are only able to provide legal advice to you if you are considered a tenant under the Residential Tenancy Act. Any situation not covered by the Act is unfortunately outside of our realm of expertise. If you are an occupant and you are unsure who you can talk to about your rights, please contact TAPS for referrals.