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Get Out! Getting Vacant Possession of an Estate Property

A common problem in estates administration is getting an occupant out of the house of a deceased person. Often, the deceased lived with a son or daughter, and after the deceased dies, the son or daughter refuses to leave the premises.  The question arises as to how to get the occupant to leave the premises.

This was the problem in Filippelli Estate, 2017 ONSC 4923 (CanLII). There, the deceased died on October 22, 2016. At the time of her death, the deceased was living in her house with her son, Roberto.  The deceased died leaving a Will that transferred her house to her two other children.  90% of the residue of the estate was to also pass to the two other children, with only 10% going to Roberto.

Roberto refused to vacate the house.  The estate trustees, being the two other children of the deceased, brought an application for vacant possession. In response, Roberto argued that he was a “tenant” and that the estate trustees must therefore comply with the Residential Tenancies Act. (“RTA”)  Roberto argued that he was paying his mother $650 per month. The evidence however only supported payments of $650 on four occasions over a 16 month period.  There was no evidence of an oral or written tenancy agreement. The judge found that the payments were consistent with a mother and son sharing the cost of living expenses, and not a tenancy.  The judge stated that “it would be a dangerous precedent if a son or daughter could simply assert that s/he was a tenant and that his/her deceased parent was the landlord and therefore thwart the testator’s intentions in a case like this, and require the Estate Trustees to take proceedings under the RTA.”

An order was made requiring Roberto to vacate the premises within 30 days.  If he failed to vacate, the Sheriff was authorized to forcibly remove him.

Ironically, Roberto was ordered to pay “occupation rent” for occupying the property from the date of death to the date of vacancy. The court stated that occupation rent was akin to a claim of unjust enrichment.  The mere fact that he remained in the house after the date of death did not make him a tenant and the estate trustees a landlord. In addition, Roberto was ordered to pay maintenance expenses of $282.50, and costs of $5,000.

The outcome may have been different if there was better evidence of a tenancy.

Further, the outcome may have been different if a claim was made for dependant support. Such a claim can often lead to an interim order of continued possession.

Thank you for reading. Have a great weekend.
Paul Trudelle

See also: Interim Support in Dependant Support Claims