Discovering an unknown person living in your rental property can be alarming. However, an “illegal occupant,” an unauthorized occupant and a squatter are not necessarily the same thing under Ontario law.

The correct removal process depends on how the person entered the property, whether a tenancy exists and whether the Residential Tenancies Act, 2006 (the “RTA”) applies. A landlord who chooses the wrong procedure may face delays, dismissal of their application or allegations of an illegal lockout.

This article explains how landlords can legally respond to an illegal occupant or squatter in Ontario.

Important: This article provides general legal information and is not legal advice. The appropriate procedure depends on the facts of each case.

What Is a Squatter in Ontario?

The word “squatter” is commonly used to describe someone who occupies property without the owner’s permission and without a valid tenancy agreement.

For example, a true squatter might enter and occupy:

• A vacant house;
• An abandoned building;
• A property undergoing renovations; or
• A rental unit after the lawful occupants have moved out.

A true squatter generally has no lease, has never paid rent under an agreement with the landlord and did not receive possession from a lawful tenant.

Depending on the circumstances, the person may be trespassing. The Trespass to Property Act (Ontario) prohibits certain unauthorized entry and activities on property.

Nevertheless, landlords should not assume that anyone without a written lease is automatically a trespasser. Tenancies can sometimes arise without a formal written agreement, and an occupant may claim permission from a tenant or landlord.

What Is an Unauthorized Occupant?

An unauthorized occupant usually arises when an existing tenant transfers possession of a rental unit to another person without the landlord’s consent.

Section 100 of the Residential Tenancies Act, 2006 (Ontario) permits a landlord to apply to the Landlord and Tenant Board (“LTB”) where a tenant has transferred occupancy in a manner other than an authorized assignment or sublet.

An important distinction is that a tenant’s roommate, guest or family member is not necessarily an unauthorized occupant simply because that person:

• Is not named in the lease;
• Lives in the rental unit;
• Contributes toward household expenses; or
• Has stayed for an extended period.

Generally, the issue is whether the tenant transferred possession of the unit to someone else—not simply whether the tenant allowed another person to live with them. If the tenant continues to occupy the rental unit, the facts may not support an unauthorized-occupancy application.

A landlord paralegal can review the evidence and determine whether the matter falls within the LTB’s jurisdiction.

Illegal Occupant, Squatter or Tenant: Why the Difference Matters

Before attempting removal, a landlord should determine the occupant’s possible legal status.

Misclassifying an occupant can create serious problems. Police may decline to remove someone where there is a genuine dispute about tenancy rights, while the LTB may lack jurisdiction over a true trespasser who has no connection to a residential tenancy.

How to Remove an Unauthorized Occupant Through the LTB

Step 1: Investigate and Preserve Evidence

The landlord should first establish:

• The identity of the occupant;
• When the occupant moved into the property;
• Whether the original tenant still lives there;
• How and when the landlord discovered the occupancy;
• Whether the tenant purported to assign or sublet the unit;
• Whether the landlord gave permission;
• Whether the occupant has paid money to the landlord; and
• Whether any oral or written tenancy agreement may exist.

Useful evidence can include the lease, correspondence, inspection notes, photographs, payment records, witness statements and advertisements suggesting that the tenant transferred the unit.

Landlords should obtain evidence lawfully and comply with the RTA’s entry requirements where the Act applies.

Step 2: Record the Discovery Date

Time is critical. A landlord seeking to evict an unauthorized occupant must generally apply to the LTB within 60 days after discovering the unauthorized occupancy.

If the landlord does not apply within that period, section 104 of the RTA may deem the transfer to be an assignment made with the landlord’s consent.

Landlords should therefore record the discovery date and promptly consult an eviction paralegal. Waiting to see whether the situation resolves itself can jeopardize the landlord’s legal position.

Step 3: File Form A2

A landlord ordinarily uses Form A2: Application About a Sublet or an Assignment to request:

• Termination of the original tenancy;
• Eviction of the unauthorized occupant; and
• Where appropriate, compensation for the occupant’s use of the unit.

No termination notice is required before filing an A2 application based on unauthorized occupancy. According to the LTB’s guidance, the application must identify both the tenant and the occupant, and both can dispute it at the hearing.

The landlord should follow the current Form A2 instructions carefully. Naming the wrong parties or failing to prove the discovery date can affect the application.

Step 4: Attend the LTB Hearing

At the hearing, the landlord must establish that the tenant transferred occupancy without authorization.

The tenant or occupant may argue that:

• The original tenant still resides in the unit;
• The occupant is only a roommate or guest;
• The landlord consented to the arrangement;
• A new tenancy was created;
• The application was filed after the 60-day deadline; or
• The landlord has not proven when the alleged transfer occurred.

A landlord paralegal can prepare the evidence, question witnesses and present legal submissions at the hearing.

Step 5: Obtain and Enforce the Eviction Order

An LTB order does not authorize the landlord to personally remove the occupant. If the occupant does not leave by the date stated in the eviction order, the landlord must file the order with the Court Enforcement Office.

Only the Court Enforcement Office—commonly called the Sheriff’s Office—can enforce an LTB eviction order. The LTB expressly states that a landlord cannot personally remove an occupant or change the locks to enforce an order.

How Do You Remove a True Squatter in Ontario?

A person who broke into a vacant property and has no tenancy or connection to a tenant may fall outside the usual LTB process.

A landlord may consider:

1. Contacting the police, particularly if there is evidence of a break-in, property damage, fraud or another criminal offence;
2. Providing proof of ownership and evidence that the person has no permission to occupy the property;
3. Giving clear written notice that entry or continued occupation is prohibited, where appropriate;
4. Obtaining legal advice about the Trespass to Property Act; and
5. Commencing a court proceeding for possession if the police treat the matter as a civil dispute.

Police involvement does not guarantee immediate removal. If the occupant produces a lease, claims to have paid rent or alleges that someone gave permission, the police may require the ownership or occupancy dispute to be resolved through the LTB or the courts.

Because choosing the wrong forum can cause substantial delay, landlords should obtain legal advice before deciding between an LTB application and a court proceeding.

Can a Squatter Claim Ownership of an Ontario Property?

Simply occupying a property does not make someone its owner.

Claims based on adverse possession—sometimes called “squatter’s rights”—are legally complex and are not created merely by staying at a property for a few weeks, months or even years. The status of the land, its registration history and when any alleged period of possession began are all important.

Section 51 of the Land Titles Act (Ontario) generally prevents a person from acquiring title to registered land through a new period of adverse possession after registration. Any genuine title dispute should be referred to a lawyer experienced in real property litigation.

Why Landlords Should Avoid Self-Help Eviction

Even when a landlord strongly believes an occupant has no right to remain, the landlord should not:

• Use force or threats;
• Remove the person’s belongings;
• Shut off water, electricity or heat;
• Change the locks while a possible tenancy remains in dispute;
• Misrepresent the facts to the police; or
• Attempt to personally enforce an LTB order.

Ontario identifies taking possession without following the RTA and illegally changing locks as potential rental housing offences.

Self-help measures can expose a landlord to claims for compensation, administrative fines, prosecution or an order restoring possession. They can also complicate an otherwise valid removal case.

How an Eviction Paralegal Can Help

An experienced eviction paralegal can help an Ontario landlord:

• Determine whether the person is a tenant, unauthorized occupant, overholding subtenant or trespasser;
• Identify the correct legal forum;
• Protect the 60-day A2 filing deadline;
• Prepare and file the required documents;
• Organize evidence;
• Represent the landlord at an LTB hearing; and
• Explain the Sheriff enforcement process.

Early advice is particularly important when the occupant claims an oral tenancy, pays money to the landlord or produces documents that appear to grant occupancy rights.

Speak With an Ontario Landlord Paralegal

Removing an illegal occupant or squatter in Ontario is rarely as simple as changing the locks. The first, and most important, step is correctly identifying the person’s legal status.

Landlord First LLP assists housing providers with unauthorized-occupancy disputes, eviction applications and LTB proceedings. Contact our office to speak with a landlord paralegal about the appropriate legal removal process for your property.