Sometimes, a tenant moves out of his apartment before the termination of his lease, without notifying his landlord of his intentions. In such a situation, will the lease be considered resiliated or not.
Article 1975 C.C.Q. states as follows:
“The lease is resiliated of right where a lessee abandons the dwelling without any reason, taking his movable effects with him; it may also be resiliated without further reason, where the dwelling is unfit for habitation and the lessee abandons it without notifying the lessor.”
However, it is not always clear if the tenant abandoned the dwelling or not.
In Pelletier c. Leclerc(1), the tenant asked for the resiliation of the lease because the landlords refused its assignment without valid reason. She also requested 22,500.00$ as damages for disturbances and inconveniences and 2,500.00$ as punitive damages for non-respect of a fundamental right recognised by the Charter of Human rights and freedoms.
The landlords answered by presenting a motion to dismiss the action, pleading that, according to article 1975 C.C.Q.(2), the lease was already resiliated following the abandonment of the dwelling by the tenant.
The evidence showed that the landlords received a letter from the tenant notifying them that she was going to leave her apartment on November 3rd and another one from Hydro-Québec informing them that they would be responsible for the electricity bill starting the same date. The landlords offered the tenant a transaction to end the lease, but they never received an answer.
The tenant left, and on November 3rd and 10th, 2007, she took almost all her movable effects. A month later, having heard no noise from the apartment and not having seen the tenant, the landlords decided to check the dwelling. They noticed that there was only a couch left and a few belongings. On January 17th, 2008, they changed the locks to the apartment. The same day, they received a notice of assignment of lease from the tenant. During the audience, the tenant proved that she continued to pay her rent and her Hydro-Québec bills.
The Court reminds us that “abandonment of a dwelling” takes place when a person leaves unexpectedly, running away from his obligations. According to the Civil Code, a tenant abandoned his lease only if two conditions are fulfilled. First, he left taking with him all his movable effects, and second, he had no reason to do so.
In this case, the Court concluded that the tenant did not abandon the dwelling and that the lease was not resiliated following her departure. Moreover, the tenant had the right to assign her lease. Therefore, the motion to dismiss the action was rejected.
In another case, Archambault c. Fleury-Aubé-Martin(3), the tenant moved out, but continued to pay the rent and hired a real estate agent to try to sublease or assign the lease. The Court concluded that the tenant did not abandon her dwelling. However, the lease was ended by the landlord who asked the agent to hand over the keys of the apartment.
Moreover, a dwelling unfit for habitation gives a tenant a good reason to abandon it.
Considering the above-mentioned jurisprudence, a lease is resiliated of right according to article 1975 C.C.Q. under certain conditions. First, the tenant must abandon his dwelling and take with him all his movable effects. Second, in doing so, he must try to escape his obligations, the most important being the payment of rent. Finally, the tenant must not have a reason to depart.
In a case of abandonment of dwelling, the landlord has the obligation to limit his damages and to try to rent out again as soon as possible. Each case is decided according to its own circumstances, the Court deciding if the landlord limited or not his damages.
In a decision pronounced on February 12th, 2010, during the appeal of a decision of the Régie du logement, Judge Jacques Paquet answered the following question:
“Do the landlords have a right to receive an indemnity for damages because of their lost of revenues and, if so, what would be the amount of such an indemnity?” (4)
The lease had been signed for a period of one year going from September 1st, 2007 to August 31st, 2008. During January 2008, the tenants abandoned the dwelling. The landlords could only re-rent on July 1st, 2008.
The Régie du logement ordered the tenants “[TRANSLATION] to pay 9 900.00 $ to the landlords, representing 1650.00 $ for the unpaid rent of January 2008 plus five months of rent for the lost of revenues”.
During the appeal, the tenants pleaded that the landlords did not made the necessary efforts to re-rent.
The Court overturned the decision of the Régie du logement and granted a four months rent indemnity on the grounds that the landlords, by not publishing their advertisement in the newspapers “[TRANSLATION] neglected other possibly efficient methods which had been useful in the past.”
It is therefore of the utmost importance to often publish your advertisements in the newspapers while trying to re-rent your apartment if you want to prosecute your tenant for the lost of rent in a case of abandonment of the dwelling.
(1) 2010 QCRDL 10816
(2) “The lease is resiliated of right where a lessee abandons the dwelling without any reason, taking his movable effects with him; it may also be resiliated without further reason, where the dwelling is unfit for habitation and the lessee abandons it without notifying the lessor.”
(3) 2010 QCRDL 8651
(4) Morin et al. c. Hachem et al., EYB 2010-170402 (C.Q.), 18 février 2010
