Residential landlords are obligated by the Civil Code of Québec and the Act respecting the Régie du logement to respect several public policy provisions regarding residential leases. However, landlords are often affected by damaging issues that may arise during the course of a lease. It is therefore important for landlords to use good practices and to be informed of the solutions available to them in order to defend their interests and avoid damages.
Peaceful enjoyment – Trouble between tenants
While the landlord’s obligation of peaceful enjoyment is an obligation of result, in cases of conflict between tenants, the landlord must act quickly to put an end to the disturbance as soon as he is aware of the situation. He cannot refuse to intervene; he must take all reasonable means to resolve the problem quickly. Unless clearly convinced, the landlord must act impartially. The administrative tribunals’ recommendations in this regard are for the landlord to ask the complainant tenant to document the disturbances or to require third parties to confirm the facts to ensure the seriousness of the complaint and to avoid playing the intermediary where there are conflicting versions1. The Court of Québec recognized that the presumption against the landlord could be effectively rebutted when the landlord proved that he had acted prudently and diligently by communicating with the tenant responsible for the wrongful behaviour by means of a notice of default, verbal notice or meeting2. As a last recourse, a prudent and diligent landlord may also apply for the termination of the lease if the situation seriously affects his or her rights and those of other tenants. In addition, he must prove that the trouble is persistent, especially that the repeated and insistent behavior of the tenant at fault seriously disturbs the other tenants. An isolated event is not considered a valid reason for seeking termination3.
Abandonment of the leased premises by the tenant
“A lease is lawfully terminated if, without any valid reason, a tenant abandons his dwelling during the lease by taking away his household effects; it can be terminated, without further cause, when the dwelling is unfit for habitation and the tenant abandons it without notifying the landlord4.” The tenant must also evade his obligations, in particular, the payment of the rent.
The Régie du logement has recognized that leased premises that:
- are not delivered in a good state of repair of any kind,
- are unfit for habitation, more specifically, are a threat to the health or safety of the tenant, or
- are not maintained at an adequate temperature,
represent valid reasons for a tenant to abandon the leased premises5.
It is still up to the tenant to prove that the leased premises are in a poor state of habitation. The Court will consider whether an ordinary person can live under the conditions exhibited by the complaining tenant and whether the seriousness of the situation warrants abandonment as the only solution. In the past, the Court has pointed out that simple deficiencies that do not make the leased premises uninhabitable could result in compensation, but not the termination of the lease6. In other words, failure by the complaining tenant to demonstrate serious reason, which could not be resolved quickly by a duly informed landlord, would likely result in the Court rejecting the tenant’s request for termination of the lease.
However, regardless of the reasons for recourse before the Régie du logement, the Court will assess whether the landlord has taken all necessary measures to re-rent the premises in order to limit its damages. Regular advertisements in newspapers or on the internet can be valid evidence produced to the Court.
Failure to pay rent
Landlords’ associations have for some time called on the government for protective measures regarding the recovery of unpaid rent since the current measures at the Régie du logement can end up being long, expensive and uncertain.
That being said, a landlord has certain recourses before the Régie du logement when a tenant fails to pay the rent. The termination of a lease by the landlord for the tenant’s default to pay is only available when the tenant has delayed payment for more than three (3) weeks or when the tenant frequently delays the payment of his rent and the landlord suffers serious harm as a result.
In the absence of such situations, the landlord can only make an application to the Régie du logement for the recovery of the unpaid rent after the sending of a formal notice to the tenant. Moreover, the mere fact that the tenant pays the rent owing and the applicable fees and interest at any time before the Régie du logement makes its decision on the termination of the lease, will allow the tenant to avoid the default and prevent the landlord from succeeding in terminating the lease7.
The coming into force of the legalization of cannabis on October 17, 2018 forced landlords to send a notice to their tenants before January 15, 2019 if they wished to modify current leases to prohibit the use of cannabis in the leased premises.
Since that date, it is up to the landlord to decide whether or not any new lease includes a clause prohibiting the smoking of cannabis in the leased premises. In addition to the terms of the lease, the Cannabis Act specifically states that smoking is prohibited in common areas of residential buildings with two or more apartments unless there is a closed smoking room. Protecting people from second-hand smoke is an objective of common interest. It is therefore legal for a landlord to apply the same kind of restrictions for cannabis as those applicable to cigarettes.
In situations where the consumption is allowed by the landlord or for medical reasons, neighbors are now forced to tolerate and accept the disadvantages of this new reality under Article 976 C.C.Q. Nevertheless, although this consumption may be permitted, the tenant consumer remains subject to the obligation not to disturb the enjoyment of other tenants. Failing this, he is liable to disturbance of enjoyment by his landlord, including the termination of his lease8.
Finally, regardless of the recourse brought before the Régie du logement, the prudence and diligence of the landlord is one of the most evaluated criteria by the Court. It is therefore essential for a landlord to act quickly and document his claims in order to avoid being criticized for his nonchalance.
By Mance Ménard St-Pierre
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, Paying the rent, https://www.rdl.gouv.qc.ca/en/being-a-lessee/paying-the-rent
8 Résidence de la Tour Westmount ltée v. Goldenblatt (R.D.L., 2019-05-23)