It often happens: a tenant states that his apartment is infested by mould, bed bugs or cockroaches and that his health or the health of the occupants of the apartment are endangered.
Under those circumstances, can the tenant abandon the dwelling?
Article 1915 C.C.Q. states as follows:
“1915. A lessee may abandon his dwelling if it becomes unfit for habitation, but he is bound to inform the lessor of the condition of the dwelling before abandoning it or within the following 10 days.
A lessee who gives such a notice to the lessor is exempt from rent for the period during which the dwelling is unfit for habitation, unless the condition of the dwelling is the result of his own fault.”
Article 1913 C.C.Q. states that “A dwelling is unfit for habitation if it is in such a condition as to be a serious danger to the health or safety of its occupants or the public, or if it has been declared so by the court or by a competent authority.”
To verify if an apartment “[TRANSLATION] is a serious danger to the health, the court must be objective and ask itself if an ordinary person can live under the conditions described at the audition.” (1)
In Hajjar c. Hébert(2), the Régie du logement stated the points which must be proved by the tenant who abandons his dwelling :
The problems in relation to the lease property or the immovable;
The denunciation to the landlord;
The inaction of the landlord and the non execution of his legal obligations;
That his abandonment is justified because the apartment is unfit for habitation as stated in article 1913 C.C.Q. and, if a health danger is stated, a medical proof;
The relation between the state of the apartment and the claimed damages.
When, after the denunciation of a problem, for example, cockroaches, the landlord exterminate them with success and within a short lap of time, the tenant still abandons his apartment, he will be liable for relocation damages(3).
In a recent decision, after the notice of abandonment stating an infestation affecting the health or safety of the tenants, the Court concluded that the fact that there were rats in the immovable during weeks was a serious danger to the health or safety of the occupants. Consequently, the Court resiliated the lease in favor of the tenants from the date of the abandonment and ordered the landlord to pay damages.(4)
As for the mould, it happens often that the tenants are the origin of the problem.
Therefore, in a case where the tenants requested the resiliation of the lease from December 15th, 2009, to declare the dwelling unfit for habitation and where the evacuation had been ordered by Montréal City, the Régie du logement rejected the demand because evidence proved that the tenant had used the heat system in a wrong way and that they had refused to use the dehumidifier all the time(5).
The demand of a tenant for the resiliation of the lease, diminution of rent and damages had also been rejected when an expert brought evidence to the effect that the building itself was showing no defect on the outside, but a high level of mould and humidity on the inside and that the tenant was responsible for the augmentation of mould because he had placed his movables against the wall.
In conclusion, every case is unique and will be decided upon the evidence submitted.
(1) Gestion Immobilière Dion c. Grenier, C.Q. 450-02-00256-903
(2) Hajjar c. Hébert, 199 J.L. p. 316
(3) Dufresne c. Lachance et al 2012 QCRDL 120321
(4) Lanthier c. Barbeau 2012 QCRDL 12518
(5) Khodabandeloo c. Structures Métropolitaine (SMI) Inc.., R.L. 31 111116 031 G
