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