Urgent repairs in an apartment

By Me Guy Audet

It frequently happens that urgent repairs must be made at once inside an apartment.

Article 1865 of the Civil Code of Quebec states as follows :

“The lessee shall allow urgent and necessary repairs to be made to ensure the preservation or enjoyment of the leased property.

A lessor who makes such repairs may require the lessee to vacate or be dispossessed of the property temporarily but, if the repairs are not urgent, he shall first obtain the authorization of the court, which also fixes the conditions required to protect the rights of the lessee.

The lessee retains, according to the circumstances, the right to obtain a reduction of rent, to apply for the resiliation of the lease or, if he vacates or is dispossessed of the property temporarily, to demand compensation.”

Urgent repairs are those which must be made immediately. The tenant has the obligation to allow access to his apartment and to allow the work to be made. If he refuses, the landlord may make a demand at the Régie du logement to obtain from the Court an order to access or to vacate the dwelling for the duration of the work.

For example, in the decision Botelho c. Beaulac(1), it had been proved that an infiltration of water from the third floor apartment in a six apartments building, was leaking towards the floors below. The landlord wanted access to the apartment to make the necessary repairs but could not because of the tenant’s dogs. In light of the urgency, the Régie ordered the tenant to allow access to the landlord in her apartment upon a 24 hours notice. If the tenant still did not allowed access, the Regie permitted the landlord to enter the apartment.

When the landlord wants to make urgent repairs requiring the tenant to vacate the apartment, the latest has also the obligation to allow access to his apartment. If no agreement between the landlord and the tenant can be made, the landlord may make a demand at the Régie du logement requiring an order to vacate the premises for the duration of the repairs and for the fixation of a reasonable indemnity.

For example, in the case Remiy c. Oulaidi(2), the landlord was asking for a two months eviction of the tenant because of a mildew problem. The tenant was paying a 630.00 $ rent and refusing the 1 260.00 $ indemnity offered by the landlord. The Régie ordered the two months eviction, freed the tenant from his obligation to pay the rent, and deemed reasonable the offered indemnity reserving the tenant’s right to make a demand to the Régie if, in light of new developments, it was insufficient.

If a tenant does not follow the Régie du logement order, it could lead, upon proof of the landlord’s serious prejudice, to the resiliation of the lease(3).

(1) R.L. 36 110829 003 G, 2011 QCRDL 36312
(2) R.L. 31 100202 027 G, 2010 QCRDL 10584
(3) See article about “The access to the apartment”

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Major Work

By Me Guy Audet

NON-URGENT MAJOR IMPROVEMENTS AND MAJOR REPAIRS

After being notified by his landlord, a tenant must allow non-urgent major repairs and improvements to be made. Such repairs could consist in the renovation of a kitchen, repairs in a bathroom or a change of windows in an apartment.

NOTICE TO BE GIVEN TO THE TENANT

Before beginning the renovations, in accordance with article 1923 C.C.Q., the landlord must give the tenant a 10 days notice prior to the date on which the work is to begin or, if it is necessary for the tenant to vacate the apartment for more than a week, at least three months before that date.

The notice must indicate the nature of the work, its duration, to the date on which it is to begin, all the conditions under which the repairs will be carried out and if they will cause a substantial reduction of the enjoyment of the premises. Where applicable, the notice must also indicate the necessary period of vacancy and, in such a case, the amount of the indemnity offered.

Indeed, when a temporary vacancy is needed, in accordance with the above mentioned article, the tenant has a right to receive an indemnity for his moving and storing fees, for the difference between the rents to go live somewhere else, etc.

RIGHT TO CONTEST THE TEMPORARY VACATION

In accordance with article 1925 C.C.Q., when the notice of the landlord provides for temporary vacancy, the tenant has ten days from its reception to notify the landlord about his intention to comply with it or not. If he does not answer, he is deemed to have refused to vacate his apartment. The landlord may, within ten days after the refusal, apply to the Régie du logement for a ruling on the expediency of the vacancy.

Article 1926 C.C.Q. gives to the tenant the right, when no vacancy is required or when he agrees to vacate, to apply to the Régie du logement, within ten days after receiving the notice, for the modification or suppression of any abusive condition.

When a demand is made to the Régie du logement, it will be decided by preference by the court.

If a dispute arises about the conditions for the vacancy, the landlord must prove that the work and conditions are reasonable and the necessity of the vacancy in accordance with article 1928 C.C.Q.

During the contestation of the conditions under which the repairs are to be carried and when deciding if the nature and the time of the work are reasonable, the court will take into account the urgency, the necessity, the interest of both party and the inconveniences.(1)

A case recently heard(2) is a great example of the above mentioned principles. A landlord had applied for an order to his tenant to vacate his apartment between September 1st, 2011 and December 31st, 2011 for the landlord to be able to redo the bathroom, to sand and varnish the floors, to soundproof the ceilings, to redo the cupboards and to paint the whole apartment. The landlord had notified, on May 25th, 2011, the tenant in accordance with the law.

The landlord explained that he wanted to carry major repairs in the tenant’s apartment because the building was really old and sickening smells were coming from the apartment.

The tenant claimed that the true intentions of the landlord, whose president was a real estate agent, was to augment the value of the apartment to then sell the building by doing a flip. He also explained that he was living close to his mother, a 85 years old lady who was counting on him to provide her with health care. He was asking for a reasonable indemnity and to be relocated in the same area of Québec city.

The court decided that the landlord had showed sufficient evidence that the work was reasonable and a six weeks vacancy necessary. The court ordered the temporary vacancy of the apartment, from the 30th day of the date of the decision.

The court also concluded that the tenant “[TRANSLATION] has a right to be relocated in the same area of Québec city, in a place where he will be able to keep his dog with him and where he will be close to his mother, an old lady he seems to take care of.”

The judge adds that the landlord “[TRANSLATION] will have to pay to the tenant the costs for him to stay in another apartment or in a hotel, […] in downtown Québec, for the duration of the repairs, up to a maximum of 250 $ per day.”

NO LEGAL OBLIGATION TO NOTICE THE TENANT IF THE REPAIRS ARE CARRIED INSIDE THE BUILDING, BUT OUTSIDE OF HIS APARTMENT

When carrying repairs inside the building, it is useful to notice the tenants so that they can reduce their damages and inconveniences.

However, it has been decided that, if the repairs are carried inside the building, but outside of the apartment, in this case, for major, but of short duration work at the back of the building, the landlord had no legal obligation to notice his tenant.(3) The tenant, under certain circumstances, will have a right for a diminution of the rent if he can prove a reduction of the enjoyment of the premises or damages.

INTERDICTION TO CHANGE THE FORM OR DESTINATION OF THE APARTMENT DURING THE TERM OF THE LEASE

Article 1856 C.C.Q. forbids both the tenant and the landlord to change the form or the destination of the apartment during the term of the lease. Therefore, a tenant will be able to make a valid opposition to a landlord who wants to, by doing major work, change a 5 ½ in a 4 ½.(4)

(1) S.E.C. Complexe d’Habitation 67 c. Vaillancourt, (2003) J. L. 346 à 348
(2) 9193-7094 Québec Inc. c. Frève, R.L. 18 110615 014 G
(3) Rufer c. Arsenault, R.L. 31 050106 095 G
(4) Boudreau c. Paquet, (2002) J.L. 107

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Dividing, enlarging or changing the destination of a dwelling

By Me Guy Audet

Article 1959 of the Civil Code of Quebec gives landlords the right to evict their tenants to “divide the dwelling, enlarge it substantially or change its destination.”

In accordance with article 1960 C.C.Q., the landlord will have to notify his tenant at least six months before the expiry of the lease in the case of a lease with a fixed term, that is, before December 31st for leases terminating on June 30th. If the duration of the lease is of six months or less, the notice will have to be received at least one month before its end. For a lease without a fixed term, the notification will have to be done six months before the date of eviction.

Article 1959.1 of the Civil Code of Quebec states that the landlord will not be able to evict a tenant if the tenant or their spouse, at the time of the eviction, is 70 years of age or over, has occupied the apartment for at least 10 years and has income equal to or less than the maximum threshold qualifying the tenant or spouse for a dwelling in low-rental housing according to the By-law respecting the allocation of dwellings in low rental housing.

Article 1966 C.C.Q. states that the tenant who wants to contest the notice of eviction must fill a demand at the Régie du logement within the month following the reception of the notice. Therefore, the procedure in case of a division, enlargement or change of destination is different from the procedure in case of repossession as, for repossession, it is the landlord who must fill a demand at the Régie du logment when confronted with a contestation.

In accordance with article 1966 C.C.Q. it is the landlord who will have to prove that he truly intends to divide, enlarge or change the destination of the apartment.

In order to convince the administrative judge of that, the landlord will normally produce in proof the architect plans and the permit he will have demanded and obtained from the city in order to do his project.

As for the division of an apartment, it is not enough, for a landlord, to diminish the area of the already existing apartments. Indeed, the majority of the decisions(1) state that a multiplication of apartments must result from this division.

When a tenant is evicted, in accordance with article 1965 C.C.Q., the landlord must pay the equivalent of three months of rent plus a reasonable sum for the moving as an indemnity. If the tenant thinks that this is not enough considering his prejudice, he can fill a demand at the Régie du logement for the fixation of another amount.

(1) Sylvie Cyr c. Les immeubles Garon société en nom collectif, 18-071221-011 G, 28 février 2008, r. Micheline Leclerc, (R.L.); Lindel White et Sandra Clayton c. 9175-1503 Québec Inc., 31-080104-108 G, 22 février 2008, r. Chantale Bouchard, (R.L.)

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Resiliation of the lease and drug trafficking

By Me Guy Audet

In the course of their daily management, landlords can receive complains about a tenant doing drug trafficking or using drugs himself.

Can the landlord obtain the resiliation of the lease by proving that the tenant is doing drug trafficking? Can he obtain it by proving only a use of drugs?

In a 2003 decision, Corporation d’habitations Jeanne Mance c. Gaudreault(1), the evidence was to the effect that the tenant had, over a two weeks period, used his apartment as a local to do drug trafficking. He was selling drugs to his friends, strangers and other tenants of the building. The landlord stated that the tenant had changed the destination of the leased property by carrying a commercial activity in contravention of article 1856 C.C.Q.

The Régie du logement, in trial proceedings, had rejected the landlord’s claim for the resiliation of the lease stating that the tenant had been doing drug trafficking for a limited amount of time and then stopped.

In appeal, the question was as follows:

‟Does a change in the destination of the lease property, in this case, selling drugs, needs to be permanent for the landlord to obtain the resiliation of the lease? Can only one trafficking be enough to obtain the resiliation of a lease?”

The Court answers the question by stating that the activity itself is not an essential condition to obtain the resiliation of the lease, but a criteria to be considered. Therefore, only one trafficking does not mean an automatic resiliation, but it could be sufficient in some cases.

The Court explains that the simple use of drugs, even though illegal, is not enough to obtain the resiliation. A tenant not respecting his engagements in relation to the lease, however, is.

In this case, the Court decided that drug trafficking was an illegal commercial activity, in opposition to the simple act of using drugs which was not commercial. The Court stated that the drug trafficking was, in this case, enough to have changed the destination of the leased property.

The Régie du logement followed the same principles. To obtain the resiliation of a lease because of drug use, the landlord will have to prove damages caused by the situation. For example, complains from other tenants, noise caused by people coming and going in the building, faulty or aggressive behaviors from the tenant or the people who are given access to the building by him(2).

For example, the 22 years old son of a tenant who was giving access to people troubling the peaceable enjoyment of the other tenants and affecting the security of the landlord, his janitor and the other tenants pushed the Régie du logement to resiliate the lease despite the tenant’s 22 years of occupation(3).

However, testimony of a landlord stating that he had smelled, on one occasion, drugs odors, even though he was a policeman and did not want anything remotely related to drugs in his building, was not considered sufficient to resiliate a lease because no other damages were mentioned(4).

A landlord must therefore prepare his file to prove the prejudice brought to him by the use of drugs or their trafficking.

(1) 2003 CAnLII 26215 (QCCQ)
(2) Dion c. Gauthier, R.L. 10-081009-002G
(3) Lussier c. Legrand, R.L. 31-070628-088
(4) Laverdière c. Du ck, R.L. 28-070112-007 G

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Non-Payment of Rent and Frequent Late Payments

By Me Guy Audet

The most important obligation of a tenant is to pay the rent on the first day of each month, in accordance with article 1903 C.C.Q., unless otherwise agreed.

Article 1971 C.C.Q. states that the landlord can make a demand for the resiliation of the lease when his tenant is three weeks late on his rent or when he is frequently late in paying it and thus causing him a serious prejudice (damages). For example, the proof that the frequent late payments caused a financial lost is considered a serious prejudice.

The question recently asked during the appeal of a decision of the Régie du logement is :

“[TRANSLATION] After noting that the tenant was more than three weeks late in the payment of his rent, did the Régie du logement judge had discretion to give an additional delay to pay before ordering the resiliation of the lease?”(1)

Even though proof had been made that the tenant owed an amount of 8 821.00 $ and that he was often paying his rent late, the Régie du logement decided to order the tenant to pay on the first of each month in accordance with article 1903 C.C.Q. The Régie added that : “[TRANSLATION] in light of the specific circumstances of this case, the lease will not be resiliated if the owed rent, the interest and fees are paid before the expiration of the delay for appeal.”

In this case, the tenant did pay an amount of 3 002.00 $ at the beginning of the audition and the rest after the decision, but before the expiration of the delay for appeal as it had been authorized by the administrative judge.

Judge Michel A. Pinsonnault states in his decision that he had to answer the matter in dispute in light of the decision and the evidence given during the first instance and without taking into account subsequent facts. If the tenant did or did not pay his rent was therefore irrelevant.

The Court explains that article 1973 C.C.Q. does not give discretion to the judges of the Régie du logement when a claim is made because the tenant is more than three weeks late in the payment of his rent. The Court adds that the discretion given by article 1883 C.C.Q. only applies when a tenant paid his rent, plus the fees and interests before the decision. Also, the Court states that article 1883 C.C.Q. is one of public order as it can be inferred by article 1893 C.C.Q.

The landlord won is appeal, the lease was resiliated and the eviction of the tenant and all other occupants of the apartment ordered.

(1) Domaine de Parc Cloverdale c. Amoun Issa et Régie du logement (mise en cause), 2011 QCCQ 1468, AZ-50726400, (C.Q.)

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Modification of a lease

By Me Guy Audet

As a landlord, you sometimes want to modify the conditions stipulated in the lease of your tenant. For example, you can want to take back a parking or a storage space that was used by your tenant.

The question that can be asked is whether or not you can do this and, if you can, under which conditions?

The Régie du logement made a decision regarding those questions (1).

After hearing the tenant’s testimony, the Régie concluded that “[TRANSLATION] according to the circumstances, there is no ground to grant the modification demanded by the landlord for the parking space. The landlord’s mandatory has brought forward lots of hypothetically grounds, but nothing proves that the modification is justified by a reel need of the landlord to immediately take back the parking space.”

About the storage space, the Régie concluded: “[TRANSLATION] that it is not a condition of the lease, but a privilege given by the landlord for a certain amount of time. Distinguishing between a condition and a privilege is a question of facts.” In this case, it was proven that the storage space had not been given during the signature of the lease and that no paying had been planned for it.

The main criteria taken into account by the Régie du logement to allow or not a modification is a tenant’s right to maintain occupancy. For example, a landlord wanting to forbid smoking in an apartment will probably see his demand rejected. Indeed, for a smoker, being able to smoke or not in his apartment is determining in his choice to stay or not in an dwelling.

(1) 9068-5173 Québec Inc. c. Sachs et al. 31- 09519 041 F, 20 mai 2010 (R.L.)

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