This article is the first in a series dealing with various issues which can arise when there is a death in a tenancy. The original intent was to provide a single tidy, one-stop shop article but as it turns out: this can get complicated!
Something that landlords might not be aware of is their obligations arising from the Wills and Succession Act, SA 2010, c W-12.2 (the “WSA”). Broadly speaking, the WSA addresses the legalities of wills in Alberta, what happens when a person dies without one and other similar issues. Of note, however, are the provisions relating to the temporary possession of the family home which is found among those provision designed to protect the family members left behind when a person dies.
Section 75(3) of the WSA provides occupancy rights to the surviving spouse or adult interdependent partner of the deceased. While it’s clear that a spouse is the husband or wife of the deceased person, adult interdependent partner is a unique Albertan concept. Without becoming too specific, since the definition is not straightforward, it includes what many people would describe as a common-law spouse. However, landlords should be aware that it can be broader than this and include any person who lived in a relationship of economic interdependence with the deceased – there is no necessity of a romantic relationship. An example of this might be a parent who lives with an adult child who is wholly dependent on their parent perhaps by reason of a disability.
Returning to the WSA, where a person has died and they were the only name on a written tenancy agreement, their surviving spouse or adult interdependent partner is entitled to live in the family home for 90 days from the date of the death.
During that 90-day period, the person occupying the premises during that period of time is the deemed tenant for most purposes. That means they must follow the tenant’s covenant such as not doing or permitting significant damage to the leased premises. The obligation to pay rent can depend on how matters are addressed in any will but rent must be paid. Further, landlords continue to have all of the rights of a landlord under the Residential Tenancies Act (i.e. to access the unit on proper notice, to collect rent, etc.).
This article introduces the concept of temporary possession but landlords are urged to seek specific legal advice when addressing situations involving the death of a tenant because these matters can be nuanced and involve legal issues outside of those landlords would normally expect to address.