1. ON THE AGREED DATE, THE LANDLORD MUST DELIVER THE DWELLING IN GOOD HABITABLE CONDITION AND IN GOOD REPAIR CONDITION (ART. 1854 PARA. 1, ART. 1910 AND ART. 1911 C.C.Q.)

The delivery of the dwelling in good repair, habitability and cleanliness is one of the landlord’s main obligations under a residential lease. The landlord must allow the dwelling to be occupied on the date agreed to in the lease.

When the landlord carries out work for the dwelling, he must restore it to a clean condition.

However, there is a certain tolerance applied by the Régie du logement during the multiple tenant overlaps that occur on July 1st during the annual move.

The landlord must still act with reasonable speed and reach an agreement with the tenant in question in order to reduce inconvenience to a strict minimum. In a decision rendered by the Régie du logement, a landlord was unable to deliver the rented unit before July 6 due to numerous defects. Despite the tolerance sometimes noted, it was decided in this case that the landlord had not demonstrated an attempt to minimize the inconvenience[1].

What is a dwelling in a good state of habitability and cleanliness? The courts apply the reasonable person standard and analyze the situation from an objective perspective. Each situation must be assessed independently.

2. PROVIDE FOR THE PEACEFUL ENJOYMENT OF THE DWELLING (ART. 1851, ART. 1854 PARA. 1 AND ART. 1859 C.C.Q.)

The obligation to provide the tenant with peaceful enjoyment of the dwelling is an obligation of result that applies throughout the term of the lease. Unlike an obligation of means, a landlord will not be able to avoid his obligation by pleading that he has taken all the means at his disposal to solve the problem. Only force majeure may allow the landlord to avoid an obligation of result. However, as we will see later, the obligation to provide quiet enjoyment of housing is often analysed in terms of a guarantee obligation.

The notion of peaceful enjoyment is very broad and can affect many facets of life in a dwelling. These include the presence of vermin, bed bugs, excessive noise, unfinished repairs, water infiltration, etc.

The landlord’s obligation to eliminate vermin and insects is a guarantee obligation. It is not enough for the landlord to prove that he has taken all necessary measures to control these insects. He must succeed.[2]

A tenant who was inconvenienced by the repair of indoor parking lots for 2 years was compensated because he was deprived of a normal right of use[3].

Peaceful enjoyment of the leased premises may also be affected by the abusive and vexatious behaviour of the landlord. Indeed, a landlady was ordered to pay $10,000 in moral damages and $5,000 in punitive damages to a tenant for her “abusive and vexatious” behaviour. The landlady allegedly initiated repeated legal proceedings, cut off the power at the tenant’s home, did not properly maintain the dwelling, etc.[4]

What about the loss of enjoyment caused by the act of a third party?

Art. 1859 of the Civil Code of Québec stipulates that the lessor is not required to compensate the prejudice resulting from the disturbance in fact that a third party brings to the enjoyment of the property; it may be so where the third party is also a tenant of the property or is a person to whom the tenant allows the use of or access to it. The article also provides that the tenant, however, retains his other recourses against the landlord if the enjoyment of the property is diminished, whether or not it is due to a third party.

Let’s take a simple example to illustrate this concept: excessive noise.

If the excessive noise comes from the neighbour tenant of the same landlord, the latter will be liable and may be sued for damages.

If the excessive noise comes from a construction site on the property of a neighbour who has no contractual relationship with the landlord, the landlord will not be held liable to repair the damage suffered by the tenant. Nevertheless, if the enjoyment of the dwelling is diminished by this excessive noise, the tenant could still obtain a rent reduction or termination of the lease[5].

However, the tenant’s attempt could fail if, for example, the excessive noise comes from the neighbouring bar when the tenant knew there was a bar at the time the lease was concluded.

It should be noted that the tenant should always send a formal notice to the landlord to allow him to correct the situation. Failure to allow the landlord to correct the situation may cause the action to fail, according to some case law.

Each case is a specific case that must be evaluated by a lawyer.

3. MAINTAIN THE DWELLING IN A GOOD STATE OF HABITABILITY AND CLEANLINESS (ART. 1910 AND ART. 1911 C.C.Q.)

We discussed this obligation above in discussing the delivery of the leased property on the date agreed to in the lease. This obligation extends and is imposed throughout the term of the lease.

Not only must the dwelling be habitable and clean, but it must also comply at all times during the term of the lease with the various standards set by the public authorities. For example, health regulations, Building and Housing Codes, etc.

4. MAINTAIN THE DWELLING UNIT FIT FOR HOUSING (ART. 1913 C.C.Q.)

Fit for habitation dwelling is a different concept from dwelling in a good state of habitability and cleanliness. The notion of “fit for habitation” can be seen as a higher or even more rigorous requirement.

It is article 1913 of the Civil Code of Québec, in its second paragraph, that stipulates that a dwelling is unfit for habitation if its condition constitutes a serious threat to the health or safety of its occupants or the public, or if it has been declared as such by the court or by the competent authority[6].

The difference between “uninhabitable”, “unhealthy” and “unfit” is crucial. Indeed, it is only when the dwelling is unfit for habitation that the tenant is entitled to abandon it.

The facts will have to be assessed in light of the law and case law to determine whether a dwelling is indeed unfit for habitation.

A landlord who cuts off electricity in March was found to be excessive. The dwelling was then qualified as unfit for habitation and the tenant was therefore entitled to abandon the dwelling.

However, the serious threat referred to in article 1913 C.C.Q. must come from the dwelling itself and not from a third party. Some tenants have seen fit to abandon the rented premises as a result of a neighbour’s misconduct. They may have feared for their health, of course. However, the dwelling was in a perfectly clean and habitable state and they were not entitled to abandon it without a court decision[9].

In another decision of the Régie du logement, a tenant was granted the right to abandon the dwelling following a persistent infestation of bedbugs. Indeed, the infestation represented a serious threat to his health. [10]

5. GUARANTEE THAT THE DWELLING CAN BE USED FOR ITS NORMAL USE AND MAINTAIN IT FOR THIS PURPOSE THROUGHOUT THE TERM OF THE LEASE (ART. 1854 PARA. 2 C.C.Q.)

The landlord has an obligation to ensure that the dwelling is suitable for its normal use, i.e., residential housing, throughout the term of the lease. In addition to this obligation, there is also the obligation to maintain the dwelling for this purpose.

This obligation is a public order obligation and it is therefore not possible to derogate from it in the lease.

When this obligation, known as the guarantee of aptitude, is invoked, it is generally referred to as a major problem.

A major problem is defined as, for example, a heating problem in winter or a major water infiltration.

While a tenant may accept certain encroachments on the peaceful enjoyment of his dwelling, the defects referred to in the aptitude guarantee are not susceptible to be accepted by the tenant. The landlord must then correct the situation.

In Godbout v. Gaudette, we’re dealing with a major water infiltration. The landlord is always liable for damages suffered by the tenant, whether it is a problem known to the tenant or not[11].

6. MAKE ALL NECESSARY REPAIRS, EXCEPT THOSE AT THE EXPENSE OF THE TENANT (ART. 1864 C.C.Q.)

Article 1864 of the Civil Code of Québec stipulates that the landlord is required, during the lease, to make all necessary repairs to the leased property, with the exception of minor maintenance repairs; these are the responsibility of the tenant, unless they result from the obsolescence of the property or from force majeure.

This is an obligation of result and not only of means.

The problematic terms in the above-mentioned article are “minor maintenance repairs” which must be carried out at the expense of the tenant. This expression is the subject of rather contradictory case law. Every situation is a case in itself and will be left to the discretion of the court.

Let us look at some examples from the case law.

The landlord is responsible for repairing a washer and dryer provided with the unit.

One tenant tried to charge the landlord for sanding and varnishing the floors of the apartment, but was unsuccessful. Indeed, the court ruled that the appearance of the floors was not related to the habitability of the dwelling and that the scratches resulted from the normal use of the floor by the tenant’s family[13].

It is important to note that a tenant may also require repairs to be made in the common areas of the building[14].

7. NOT TO CHANGE THE FORM OR DESTINATION OF THE DWELLING (ART. 1856 C.C.Q.)

“Neither the landlord nor the tenant may, during the lease, change the form or destination of the leased property”[15].

The parties involved in the lease have an obligation to maintain the general appearance of the leased space. A tenant cannot, unilaterally, decide to tear down walls, open the ceiling or change the appearance of the dwelling in an extreme way.

If the tenant still decides to contravene this provision, he or she may have his or her lease terminated and be ordered to pay damages to the landlord to compensate for the damage suffered.

However, article 1922 of the Civil Code of Québec grants the landlord the right to make improvements of a permanent nature.[16]

As for the destination of the dwelling, in our case, we are talking about a dwelling that is to be used exclusively for residential purposes, subject to an agreement between the parties.

The lease was terminated in Poirier v. Brito after a ceramic workshop was set up in the dwelling, thereby changing the purpose of the rented premises.[17]

In a recent decision rendered by the Régie du logement, a landlord is seeking the termination of the lease based on article 1856 of the Civil Code of Québec because the tenant subleases his apartment on Airbnb without the landlord’s prior consent, also in violation of article 1870 of the Civil Code of Québec. The landlord was found to have suffered serious prejudice and the lease was terminated because the destination of the dwelling had been changed by the tenant’s actions.[18]