The RDL that the notice transmitted by the tenant under the terms of article 1974 of the C.c.Q. is not a notice of cancellation of a lease

Article locked Published on by Me Bill Kostopoulos

Topic(s): Legal

Source: Messier Soucy Avocats

The RDL that the notice transmitted by the tenant under the terms of article 1974 of the C.c.Q. is not a notice of cancellation of a lease

In the case Thivierge vs. C.D.H.M Ltd[1], the tenant asked the Court  to rule on the validity of a notice of cancellation of a lease which she claims to have submitted to the landlord because she could not continue to live in the dwelling because of the state of her health.

The parties were bound by a lease renewed for the period of July 1st, 2009 to June 30th, 2010, at the monthly rent of $607. The tenant who is 97 years old began to have difficulty climbing the stairs to access her dwelling located on the fourth floor, in December of 2009.

The tenant sought to rent a dwelling in a building with an elevator and she sent a notice of cancellation of the lease to the landlord, which was received on February 1st, 2010 giving the reason that she had found a place in a '' foster home'' as referred to in article 1974 of the C.c.Q.

What does article 1974 of the Civil code of Quebec provide for ?

            Article 1974 of C.c.Q stipulates that: “A lessee may resiliate the current lease if he is allocated a dwelling in low-rental housing or if, by reason of a decision of the court, he is relocated in an equivalent dwelling corresponding to his needs; he may also resiliate the current lease if he can no longer occupy his dwelling because of a handicap or, in the case of an elderly person, if he is admitted permanently to a residential and long-term care centre or to a foster home, whether or not he resides in such a place at the time of his admission.

 

Unless otherwise agreed by the parties, resiliation takes effect three months after the sending of a notice to the lessor, with an attestation from the authority concerned, or one month after the notice if the lease is for an indeterminate term or a term of less than 12 months. ”

The Rental Board reminded the parties of case law concerning the interpretation of the expression “foster home” of article 1974 C.c.Q. in the case Brodeur vs. St-Pierre Baril [1]:

“The Court has analyzed the meaning and the scope of these provisions in the case of Place de CE Enr. vs. Gilbert Leduc. Here is what the Court writes:

“Contrary to a a residential and long-term care center, the expression “foster home” is not defined by the law and the case law seems divided on the interpretation that is advisable to apply to these terms.

One school of opinion which is  “restrictive” aims at restricting the meaning of the term  to residences with the mission of being used as a place of refuge, or shelter and which offers assistance or mutual aid, comfort or support, and monitoring to a person who has lost their mobility or ability to live independently.

These decisions generally exclude from this definition the buildings containing luxury residences which offer, for a fee, meal services and nursing care.

While a more liberal school of interpretation extends the meaning of this term to ‘homes’ which offer support services, assistance and necessary monitoring exclusively to elderly people because of their age or the state of their health.

Without wanting to adopt a restrictive interpretation of the term “foster home”, the Court referred to the reasons in the case of Résidences de Longpré:

“The Court considers that a residence is a foster home if it shelters only people to whom it provides assistance, support and monitoring services that are required because of a condition caused by ageing or of failing health. ”

The administrative judge, Me Micheline Leclerc, is in agreement with this majority majority case law. However, while the tenant is an elderly person, it was not proved that she was admitted to a foster home as defined by the case law. Indeed, the new lease states that the tenant rented a dwelling having three and a half rooms in a building where doctors and nurses are present, without further details, whereas she receives help solely with her housekeeping. No support, assistance or monitoring services are provided to her and she has even chosen to prepare her own meals. The Court notes that besides that, the tenant is extremely lucid and independent.

Consequently, the Court concluded that the notice sent by the tenant does not constitute a notice of cancellation of a lease within the meaning of article 1974 of the Civil Code of Québec.

 

[1]     Cécile Thivierge vs. C.D.H.M. Ltd., 18 100305 041G, 1 June 2010 (2010 QCRDL 21585)

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