Under the Civil Code of Québec and the Act respecting the Régie du logement, landlords are obliged to comply with a number of public policy rules governing residential leases. On the other hand, they are often affected by prejudicial issues that can arise during the course of a lease. That’s why it’s important for landlords to adopt good practices and be aware of the solutions available to them, in order to defend their interests and avoid damage.
Peaceful enjoyment of the premises – Disturbances between tenants
While the landlord’s obligation of enjoyment of the premises is an obligation of result, in the event of a conflict between tenants, the landlord must act quickly to put an end to the disturbance as soon as he is informed of the situation. He cannot refuse to intervene; he must take all reasonable steps to resolve the problem quickly. Unless firmly convinced otherwise, the landlord must act impartially. Administrative tribunals have recommended that the landlord ask the complaining tenant to document the disturbance, or require third parties to confirm the facts, to ensure the seriousness of the complaint and to avoid playing middleman in the face of contradictory versions1. The Court of Quebec recognized that the presumption could be rebutted in practice when the landlord proved by evidence to the contrary that he had acted prudently and diligently in addressing the offending tenant by means of a formal notice, verbal notices or meetings2. As a last resort, the prudent and diligent landlord may also apply for lease termination if the situation seriously affects his rights and those of the other tenants. Moreover, the landlord will have to prove that the disturbance is persistent, more specifically that the repeated and insistent behaviour of the tenant at fault is seriously disturbing the other tenants. An isolated fact cannot constitute a valid reason for requesting termination3.
Abandonment of the dwelling by the tenant
“The lease is terminated by operation of law when, without cause, a tenant vacates the dwelling and takes his or her household effects with him or her; it may be terminated, without further cause, when the dwelling is unfit for habitation and the tenant abandons it without notifying the landlord.4“. The tenant must also shirk his or her obligations, in particular the payment of rent.
The Régie du logement has recognized the following as valid reasons for a tenant to abandon a dwelling:
- a dwelling is not delivered in a good state of repair of any kind,
- a dwelling is unfit for habitation (i.e. constitutes a threat to the health or safety of the tenant), or
- a dwelling is not maintained at an adequate temperature5.
However, it is up to the tenant to prove that the dwelling is in a poor state of habitability. The Tribunal will analyze the situation by asking whether an ordinary person could objectively live in the conditions described by the complaining tenant, and whether the seriousness of the situation requires abandonment of the dwelling as the only solution. In the past, the Tribunal has emphasized that simple defects that do not render the dwelling uninhabitable may give rise to compensation, but not to termination of the lease6. In other words, unless a tenant can demonstrate a serious reason, which could not be resolved quickly by a duly informed landlord, the Tribunal is likely to reject the tenant’s request for termination of the lease.
However, regardless of the reasons for the tenant’s abandonment, the Court will assess whether the landlord has taken all the necessary steps to try to re-let the unit and limit its damage before confirming the re-letting indemnity in favour of the landlord. Regular advertisements in newspapers or on the Internet may be valid evidence before the Court.
Failure to pay rent
Landlords’ associations have long been calling for government protection measures for the recovery of unpaid rent, as the process of recovering unpaid rent from the Régie du logement can be long, costly and uncertain.
That said, a landlord does have certain recourse options before the Régie du logement when a tenant defaults on rent payments. It is also important to understand that there is a legal framework that landlords must follow before requesting lease termination. In fact, lease termination is only available to the landlord when the tenant is more than three (3) weeks late in paying rent, or when the tenant is frequently late in paying rent and the landlord suffers serious prejudice as a result.
In the absence of such situations, the landlord can only make an application to the Régie du logement for recovery of the rent due, which must be filed after a formal notice has been sent to the tenant. On the other hand, the simple fact of the tenant paying the rent due, together with applicable costs and interest, at any time before the Régie du logement issues its decision on lease termination, will enable the tenant to avoid default and prevent the landlord from succeeding7.
Cannabis consumption
The coming into force of cannabis legalization on October 17, 2018 forced landlords to send a notice to their tenants by January 15, 2019 if they wished to amend current leases to prohibit cannabis consumption in the units.
Since that date, it has been up to the landlord to decide whether or not any new lease includes a clause prohibiting cannabis smoking on the property’s premises. In addition to the terms of the lease, the Cannabis Control Act specifically states that it is forbidden to smoke cannabis in common areas of apartment buildings with two or more dwellings, unless a closed smoking room is installed. Protecting the public from second-hand smoke is an objective of common interest. It is therefore legal for landlords to apply the same restrictions to cannabis as they do to cigarettes.
In situations where landlords accept cannabis consumption, or where consumption is authorized for medical reasons, neighbors are now obliged to tolerate and accept the normal inconveniences associated with this new reality, under article 976 C.c.Q. Nevertheless, although such consumption may be permitted, the consuming tenant remains under the obligation not to disturb the enjoyment of the other occupants. Failure to do so exposes the tenant to remedies for disturbance of enjoyment by the landlord, including termination of the lease8.
In the end, whatever the reasons for recourse to the Régie du logement, the landlord’s prudence and diligence are the criteria most evaluated by the Tribunal. It is therefore essential for landlords to act quickly and document their claims to avoid being criticized for their nonchalance.
By Mance Ménard St-Pierre
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1 Lefebve v. Coopérative de solidarité Fusion verte
2 Cléroux v. Montréal (Office municipal d’habitation de)
3 Lacasse v. Picard
4 Article 1975, Civil Code of Québec
5 Paez v. Constructions Alain et Denis Godard inc. 2019 13073.
6 Zang v. Bally 2017 QCRDL 35274
7 Régie du logement, Rent payment, https://www.rdl.gouv.qc.ca/fr/etre-locataire/paiement-du-loyer
8 Residence de la Tour Westmount ltée v. Goldenblatt (R.D.L., 2019-05-23)