Repossession of a housing

Article locked Published on by Martin A. Messier

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Repossession of a housing

The terms and conditions allowing a landlord to repossess his dwelling are, unfortunately, much more complicated and restricted than one might think.

Each year, we have our share of landlords who have just acquired a building for the purpose of living in it and who have to face the harsh reality of our legislative system. We must first understand that the repossession of a dwelling is part of a context where the law allows the tenant to be maintained in the premises and governs rent increases and several other aspects to achieve this goal . As a result, repossession of a housing is an exception to tenure rights and is subject to several rules.

Many landlords unfortunately believe that repossession is automatic. Indeed, fresh from the notary with their new deed of sale under the arm, they come to see us often after a bad experience where they have failed in their initiative to repossess the housing.

Many landlords believe that they only have to send a notice of non-renewal of the lease and that all is done, which is obviously false.

Many landlords believe that it is possible to repossess a housing when they bought it with their mother, father, children or in the name of a company. The repossession will not be possible if it is a company, a business that owns the building. It will also be prohibited if there is more than one owner unless there are two owners and both owners are spouses of each other. Moreover, the repossession will be limited to the owner of the building and his ascendants or descendants in direct line to the first degree, the father or the mother, son or daughter. There may also be a repossession for a parent or ally to whom the landlord is the main material or moral support. Finally, it may be possible to repossess to give shelter to an ex-spouse whose owner remains the main material or moral support after their separation.

Something important of which many people are unaware of: the law has been amended and it will be prohibited to repossess a dwelling if the tenant or their spouse is a person aged 70 and over who has been living in the dwelling for at least 10 years and whose income is equal to or less than the maximum threshold to qualify for low-rent housing.

However, there is an exception if the owner is 70 years of age or older and he is the one who wants to live in the dwelling if he wants to take it back for his parents or another beneficiary who is 70 years old and more, or if he or she is 70 years of age and over and wishes to live in the same building as the person occupying it to have a caregiver who is under 70 years of age. In short, remember that if your tenant or spouse is over 70, you have to think about it. If you buy a rental property, for instance a duplex, in order to live in it and the tenant or spouse is over 70, you must already ask yourself certain questions and make some verifications: repossession could be prohibited to you.

We already see it, it's not easy, the conditions and restrictions are very numerous. That is not all however.

In order to repossess a dwelling, a notice must be sent indicating that one intends to repossess the dwelling. This notice must be detailed and comply with the provisions of the Civil Code of Québec. If you miss a portion of the notice, it could be declared invalid and your initiative will be doomed to failure. The time frame within which the notice must be sent is extremely important.

Let's first take the example of the best-known regular lease, that is, a 12-month lease. At this time, the notice must be sent at least 6 months before the end of the lease. If your lease, for instance, is a lease from July 1, 2018 to June 30, 2019, your notice must be sent no later than December 31, 2018. Caution! We recommend you send it by registered mail to be able to prove the mailing date and also to benefit from the legal presumptions when you entrust your mailing to Canada Post. If you deliver it by another method, you must make sure that the tenant has received it before December 31 and that you can prove that he did receive it before that date. If your lease is not a standard lease, we recommend that you contact us so that we can help you determine the exact time of the shipment. As you can see, the delay is not absolute, but it varies according to the end date of the lease and its duration. Again, if it is a lease of a different duration, contact us, we will see how to calculate the delay in an adequate way.

Once you have sent the notice by registered mail and your tenant has received it, print the delivery details and signature of the person who received it. The tenant has one month to answer. If the tenant does not answer, he will be presumed to have refused within one month of receiving the notice. There is therefore a presumed refusal. If we take the example of a notice that would be received on November 10, a month later, December 10, the tenant would be presumed to have refused and the landlord should submit an application to the Régie du logement no later than the month following the alleged refusal or if the tenant responds directly to the owner by refusing, the owner must submit the request in the month of refusal. In summary, here the saying would rather be "Remaining silent means refusing".

You must therefore be vigilant and calculate your delays well to avoid being trapped. The request must be submitted to the Régie du logement at the latest in the month of the refusal, whether it is an alleged refusal under the law, or one month after the sending of your notice if the tenant has not answered, or as soon as he answers. For instance, if you send your notice on November 10 and respond on November 15 by refusing, you have one month from November 15 to submit a request at the Régie du logement.

What happens at the hearing? Once again, many landlords believe that it is simply a matter of showing that they sent the notice within the prescribed time and submitting the request within the prescribed time. This is unfortunately not the case. You must demonstrate that you intend to actually repossess for the purposes mentioned in the notice. As such, you will need to carefully prepare yourself and make sure to bring all the evidence to establish your credibility. Describe the project from the moment of its conception, that is to say from the moment when you thought to take back possession of the dwelling, each of the details, the reasons which motivate the repossession, the needs and the habits of life of the person who will take possession again, the ability to respect the financial arrangements that will occur, etc... In short, it must be shown to the Court that this is not a pretext for evicting a tenant, but rather a real need for a housing of someone who intends to live in the dwelling for a long time. Several other conditions matter. We invite you to take the training session on repossession of a housing if it is a project you are considering.

If you have any questions, do not hesitate to contact our legal department and, in this case, as soon as you start thinking about repossessing your dwelling, we strongly recommend that you contact our legal department.

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