Rules according to the type of immovable
Repossession of a dwelling
The law states that a lessee may remain in his dwelling for as long as he wishes, provided that he complies with all the terms of his lease. This is known as the right to maintain occupancy.
However, there are exceptions to this rule, and repossession of a dwelling is one of them.
Who can repossess a dwelling?
The lessor, who owns an immovable, can repossess one of its units.
A co-owner of a building held in undivided co-ownership can also repossess a dwelling provided there is only one other co-owner, and that the other co-owner is their spouse.1
In any other case, undivided co-owners cannot repossess a dwelling, except in the following two cases.
If the building is sold, the new owner is responsible for the repossession once the building sale is finalized, not once a promise to purchase is signed.
For whom can a lessor repossess a dwelling?
- For himself
- His father, mother, son or daughter
- Any other relative or person connected by marriage or a civil union2 if the lessor is their main source of material or moral support
- A former spouse if the lessor remains their main source of material or moral support after their legal separation (resulting from a judgement), their divorce or the dissolution of their civil union3
When a dwelling cannot be repossessed
Despite the foregoing, a lessor may not repossess a dwelling if the lessee or the lessee's spouse is 65 years of age or over, has occupied the dwelling for at least 10 years and has an income equal to or less than 125% of the maximum income to qualify for a dwelling in low-rental housing. However, the lessor may repossess the dwelling if:
- The lessor is 65 years of age or over and wishes to occupy the dwelling
- The beneficiary of the repossession is 65 years of age or over
- The lessor is 65 years of age or over and wishes to have a beneficiary less than 65 years of age reside in the same immovable as himself
Note: Article 1959.1 of the Civil Code of Québec was amended on June 6, 2024. The criteria that applied prior to June 6, 2024, continue to apply in the following cases:
- The repossession notice was sent before May 22, 2024
- The repossession notice was sent after May 21, 2024, and the lessee notified the lessor before June 6, 2024, of his intention to comply with the notice
- The repossession notice was sent after May 21, 2024, and the lessor applied to the Tribunal administratif du logement (TAL) before June 6, 2024, for authorization to repossess the dwelling.
In such cases, the lessor may not repossess a dwelling if the lessee or the lessee's spouse, at the time of repossession:
- is 70 years of age or over
- has occupied the dwelling for at least 10 years; and
- has income equal to or less than the maximum threshold qualifying the lessee or spouse for a dwelling in low-rental housing according to the By-law respecting the allocation of dwellings in low rental housing (S-8, r. 1)
However, the lessor may repossess the dwelling if:
- The lessor is 70 years of age or over and wishes to repossess the dwelling as a residence for himself
- The beneficiary of the repossession is 70 years of age or over
- The lessor is an owner-occupant aged 70 years or over and wishes to have a beneficiary less than 70 years of age reside in the same immovable as himself.
Mandatory notice
The lessor must send the lessee a written notice4 of his intent to repossess the dwelling. The notice must include the following information:
- The anticipated repossession date (generally the end of the lease)
- The first and last name of the person who will be living in the dwelling
- The degree of relationship or the bond between this person and the lessor (son, mother, etc.)
- The restrictions and exceptions that apply in certain circumstances where the lessee or his/her spouse is aged 65 or over (see the heading When a dwelling cannot be repossessed).
Since the notice must contain specific information, it is strongly recommended to use the template provided by the TAL. By completing each of the sections, owners can ensure that they will provide all the information needed to produce a notice that meets the requirements.
Divided co-ownership property
The lessor who intends to convert his building into a building held in divided co ownership (commonly referred to as a “condominium”) so he can then sell the dwellings to third parties, must, before doing anything, give each of the affected lessees a notice of intent to convert the building.
Once the notice of intent has been given, neither the current lessor nor any subsequent buyer of the dwelling after it is converted into divided co-ownership may repossess it, barring rare exceptions.
Thus, any lessee or assignee occupying the dwelling at the time the notice of intent is sent, or any new lessee whose lease begins prior to the date of the Tribunal administratif du logement’s decision authorizing the conversion, has the right to maintain occupancy for as long as they wish, provided that they comply with the conditions of their lease.
TABLE — TIME PERIODS FOR REPOSSESSION AND NOTICES3
► LEASE OF MORE THAN 6 MONTHS
Lessor's notice
- Six months before end of lease
Lessee's reply
- Within 1 month of receiving the lessor’s notice
- If the lessee does not respond, he is deemed to have refused to vacate the dwelling.
Lessor applies to the Tribunal administratif du logement
- Within 1 month of the lessee’s refusal or the expiry of the deadline for the lessee to respond
► LEASE OF SIX MONTHS OR LESS
Lessor's notice
- One month before end of lease
Lessee's reply
- Within 1 month of receiving the lessor’s notice
- If the lessee does not respond, he is deemed to have refused to vacate the dwelling.
Application to the Tribunal administratif du logement by the lessor
- One month from notice of refusal or expiry of deadline for lessee to respond
► LEASE WITH AN INDETERMINATE TERM
Lessor's notice
- Six months before the anticipated date of repossession
Lessee's reply
- Within 1 month of receiving the lessor’s notice
Lessor applies to the Tribunal administratif du logement
- Within 1 month of the lessee’s refusal or the expiry of the deadline for the lessee to respond
If the lessor fails to apply to the Tribunal administratif du logement within the time limit set out above, the lease will be renewed with the same conditions and the lessee will have the right to maintain occupancy.
Undivided co-ownership properties
Where an immovable is held in undivided co-ownership, no dwelling may be repossessed unless there are only two co-owners and they are each other’s spouses (married, civil union or de facto)4, or unless they have acquired rights.5
TABLE OF ACQUIRED RIGHTS — UNDIVIDED CO-OWNERSHIP PROPERTIES*
► IMMOVABLE CONTAINING LESS THAN FIVE DWELLINGS
- If the title of ownership was registered in the Land Register before November 10, 1987.
OR
- If the title of ownership was registered in the Land Register before July 15, 1988, under a signed a promise to purchase dated no later than November 10, 1987, accompanied by a down payment.
► IMMOVABLE CONTAINING FIVE OR MORE DWELLINGS
- If the title of ownership was registered in the Land Register before June 11, 1981.
OR
- If the title of ownership was registered in the Land Register before December 16, 1981, under a signed a promise to purchase dated no later than June 11, 1981, accompanied by a down payment.
*A new buyer does not benefit from these acquired rights.
► DUTIES AND OBLIGATIONS OF THE BROKER
Never guarantee the outcome of a repossession
There is never any guarantee that repossession will proceed without a hitch. Even if the new owner meets all the criteria, he can still find himself confronted with a lessee who refuses to accept the repossession notice. Thus, the licence holder must never guarantee the outcome. He must advise his buying clients that a contestation is always possible, even a baseless one.
In this situation, if the new buyers still wish to repossess a dwelling, they will have to appeal to the TAL, with all the delays that this may entail. Licence holders are also advised never to guarantee the outcome of such an appeal.
Even an undertaking to vacate the premises signed by the lessee offers no guarantee that the repossession will go smoothly. For example, a lessee who agrees to vacate a dwelling, believing that he is legally obliged to do so to enable the new owners to house their daughter, could reverse his decision if he learns that the immovable has been acquired by three buyers or by a business corporation.
A prudent licence holder who wishes to protect his selling client will make sure not to guarantee the outcome of the repossession or of the TAL proceedings.
In conclusion, it is essential to know your buying clients well, as well as their intentions, to better advise and inform them. The broker must carefully document his clients’ intentions and the advice he provides. If they change their minds, this will enable him to show that he fulfilled his obligations, which will reduce the risk of incurring his professional liability.
In all cases, if the broker is unsure of the answer to a question, he must seek advice from his AEO. He may even recommend that his clients seek the advice of experts in this area, even if a dispute is already underway before the TAL.
If you represent a client who wishes to lease a dwelling held in divided co-ownership, make sure that leasing is permitted under the property’s Declaration of co-ownership or by-laws.
Know also that leasing a dwelling held in undivided co-ownership is usually not permitted unless there is a specific agreement to this effect.
1 The word “spouse” means a married or civil union spouse. Co-owners who are de facto spouses can also repossess a dwelling.
2 Such a person is a relative of the spouse (by marriage or civil union) of the owner, for example the lessor’s mother-in-law, sister-in-law, or son-in-law.
3 This does not apply to former de facto spouses.
4-5 To this effect, the lessor may use the form Notice of repossession of the Tribunal administratif du logement.
