The lessee’s right to maintain occupancy and the repossession of a dwelling by the owner

The lessee’s right to maintain occupancy

The Civil Code of Québec grants several rights to the lessee of a dwelling, including the right to maintain occupancy. Basically, this right allows the lessee to occupy the dwelling for as long as he wishes. This means he can only be evicted under very specific circumstances provided in the law. The sale of the immovable does not impact this right, which the new owner must uphold. Not only does the lessee have the right to stay in his dwelling for the duration of the initial lease, but he is also entitled to the automatic renewal of the lease (renewal of right) at term. At term, the lease is renewed for the same period or, if the initial term was more than a year, for a period of 12 months.

Third parties’ right to maintain occupancy

The right to maintain occupancy applies not only to the signatories of the lease, but also to a married or civil union spouse. It also extends to a common law spouse and to a relative or a connected person who has been living with the lessee for six months if this person continues to occupy the dwelling after the cessation of cohabitation and gives notice to that effect to the lessor within two months after cessation of cohabitation. This right also extends to a person living with the lessee at the time of the death of the lessee if that person continues to occupy the dwelling and gives notice to that effect to the lessor within two months after the death. A sublessee however does not have that right as a sublet terminates at the end of the lease.

Lessee’s agreement to vacate the premises

A lessee may not renounce in advance his right to maintain occupancy. Therefore, a clause in a lease that provides for non-renewal of the lease is without effect, even it was included with the lessee’s consent. However, nothing prevents the lessor and the lessee to agree to a termination of the lease and the lessee’s departure at a given date, as long as such agreement is made freely, without pressure on the part of the lessor. For instance, a promise to purchase could be conditional upon the seller obtaining a termination of the lease and an agreement by the lessee to vacate his dwelling before a given date, failing which the promise would become null and void.

This condition however should specify that the seller cannot guarantee that the lessee will actually vacate the premises on the agreed date. The reason for this is that there are no guarantees that the lessee will not dispute the validity of the agreement made with the previous owner. He could refuse to vacate the premises, forcing the new owner to apply to the Tribunal administratif du logement to have him evicted, without any guarantee of success. The seller could even be held liable.

Owner’s right to repossess a dwelling

The owner may repossess one of his dwellings to use it as a residence for himself or for his children, parents, or any other relative or person connected by marriage or a civil union of whom the lessor is the main support. He may also repossess the dwelling as a residence for a spouse of whom the lessor remains the main support after a separation from bed and board or divorce or the dissolution of a civil union.

To do so, the owner must be a natural person. Therefore the sole shareholder of a company that owns a multiple-unit building, not being the owner of the building himself, may not repossess one of the dwellings as a residence for himself, a connected person or other dependent person.

If the immovable has several owners (undivided co-ownership), two conditions must be present for one of the owners to be able to repossess a dwelling:

1. the number of owners may not exceed two;
2. the owners must be spouses (married or connected by a civil union or de facto spouses).

So for instance if three people co-own a triplex, none of them may repossess one of the dwellings to use as a residence.

To repossess a dwelling, the lessor must inform the lessee in writing of his intention at least six months before the expiry of the lease. The notice must indicate the name of the person who will occupy the dwelling, the bond with the lessor and the date of repossession. When the lease is for six months or less, this notice must be sent at least one month before the expiry of the lease. For a lease of an indeterminate term, the notice must be sent at least six months before the date of repossession.

In every case, the repossession is effective only upon expiry of the lease. If the lessee refuses to comply or fails to reply to the lessor within one month following receipt of the notice, the lessor may apply to the Tribunal administratif du logement for authorization to repossess his dwelling. This application must be received by the Tribunal within one month following the lessee’s refusal to vacate the dwelling or his failure to reply to the lessor’s notice.

Source: Tribunal administratif du logement

Stages in the repossession of a dwelling and notification deadlines

Repossession by the purchaser

The purchaser of a building occupied by lessees who wishes to repossess a dwelling as a residence for himself or for a dependent person must sign the act of sale before sending a notice of repossession to the lessees. To avoid contestation, it is also recommended to make sure the act of sale has been published in the land register of the Bureau de la publicité des droits before sending the notice.

For example, the purchaser of a building who wishes to repossess a dwelling that has a lease expiring on June 20 must make sure not only that the act of sale is signed, but also published by December 31 of the previous year at the latest, which is the deadline for sending the notice of repossession of the dwelling to the lessee. If the sale is published after this date, the new purchaser may have to wait an extra year before being able to repossess the dwelling.

Any buyer who wishes to repossess a dwelling in the immovable he is proposing to purchase should check the leases to determine the timelines he must follow in accordance with the procedure required by law. It is important to note that any promise to purchase concerning an income property should be made conditional upon an examination of the leases. The OACIQ made available to real estate brokers the “Promise to purchase – Immovable” form which is recommended for the purchase of a chiefly residential immovable containing 5 dwellings or more and of which clause 9.1 provides such condition.

For any questions, visit the Tribunal administratif du logement website where you will find a variety of relevant information or dial 1 800 683-2245.