Acquired right or tolerance?

Acquired right or tolerance?

Sometimes, a tenant uses a parking space or storage space even though there is no mention in the lease which gives this right to the tenant.

In such a case, we have to ask ourselves whether or not the use confers an acquired right to the tenant.

In the Simard et al. c. Proteau et al.’s(1) case, the Court of Québec reaffirmed that the use by tolerance from the landlord of a garage during a long time never conferred an acquired right to the tenant. The right has to be part of the lease.

In this case, the new landlord asked the Régie an order requiring the tenant not to use the garage and to empty it within thirty days of the decision. This demand was denied by the Régie du logement. The permission to appeal from this decision was granted and one of the issues submitted to the Court was to determine if tolerance from landlords could confer an acquired right to tenants.

The evidence submitted to the Court of Québec, as part of the de novo trial, showed that the last landlord had allowed the tenants the use of the garage to store some firewood and bicycles. He also permitted once to store a motorcycle. The Court concluded that the garage was never included in the lease and, if it had been, the parties should have specified the space allowed to the tenant since the last landlord had given the right to more than one tenant.

Furthermore, in D’Anjou c. Paradis(2), quoted by the Court of Québec in the above mentioned judgment, the tenant asked an order for specific performance or, in the alternative, a retroactive rent reduction of 25.00$ per month. The evidence showed that the tenant could park her car in front of the garage’s door of the building because the last landlord only used it for storage. The building was sold to a new landlord. The parties agreed that the lease didn’t provide such a use and that it was only by courtesy that the last landlord allowed the tenant this use in return for snow removal. The administrative judge concluded in this case that “[TRANSLATION] it is not because this one conceded this favor during eight years that it has been turned into a right. A courtesy can always be removed as simply as it was conceded.”

In Boucher c. Villa Belle Rivière de Richelieu inc.(3), the tenants asked for a rent reduction and, in addition, to be able to use the door giving an access to the parking which the landlord had decided to close off. The administrative judge reviewed the jurisprudence and concluded that a landlord can terminate any privilege given to a tenant which was never agreed upon and is not specified in the lease. Therefore, the administrative judge concluded that the door was not an acquired right, neither a condition nor a service specified in the lease.

However, in Succession G. Langlois c. Jean Dubé(4), it was asked if the tenant had the right to use the backyard and the Régie du logement concluded negatively. The evidence was to the effect that the tenant had used the backyard since she occupied the housing. The initial lease, agreed with a precedent landlord, did not contain any clause about this. The administrative judge reviewed the parties’ behavior to establish their intention and concluded that the access to the court, shared with someone else, had not been prohibited in the initial lease.

In another decision, Wahmed c. Verret(5), the tenant claimed a loss of quiet enjoyment of the premises relatively to a workshop. The landlord pleaded that there was no clause in the lease which specified that the tenant had the right to use the workshop. Without much explanation, the administrative judge concluded that the tenant had the right to use the workshop, citing Succession G. Langlois c. Dubé.

Therefore, the principle that emerges from the jurisprudence is that a courtesy can always be removed as simply as it was given. However, every situation is different and if both parties disagree, the court will try and understand the parties’ intention to determine if it is a courtesy or a right that was given. To do so, the court will examine the parties’ behavior.

[1] Simard et al. c. Proteau et al., 2013 QCCQ 2328
[2] Lynda D’anjou c. Paradis, [2002] J.L. 77 (R.L.)
[3] R.L. 25-031230-003 G
[4] Succession G. Langlois c. Jean Dubé, [2002] J.L. 110, (R.L.)
[5] Wahmed c. Verret, R.L. 18 040726 018 G

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