A Trust can not repossess a Housing for the Beneficiary of the Trust

Article locked Published on by Me Robert Soucy

Topic(s): Legal

A Trust can not repossess a Housing for the Beneficiary of the Trust

The Facts

The landlord, a Trust, wants to regain the housing of the landlord to accommodate in there the beneficiary of the Trust, Ms. Claire. The landlord forwards to the tenant, on December 31, 2012, through a bailiff, a notice of repossession of the housing, to accommodate Ms. Claire there, effective on June 3, 2013.

The tenant answers that he refuses to vacate the housing. The landlord, i.e. the Trust, brings in a timely appeal to the Régie du logement to be allowed to repossess the dwelling.

At the hearing, the counsel for the Trust justifies the request for repossession for the benefit of Ms. Claire. It is specified in the will of the father of Ms. Claire that the income from the testamentary Trust will be used for the welfare and care of Claire and that, on the death of the latter, the capital of the Trust will be shared between the children.

The evidence is to the effect that the Trust is the main support of the beneficiary of the right of repossession of the dwelling. According to the evidence, the building was acquired by the Trust under the will of the father in order to accommodate his daughter Claire on 19 September 2003.

Claire, the daughter, has occupied a dwelling located in Longueuil for nearly 10 years. She will be closer to her two sisters living in the Laurentians, of which one who occupies a unit in the building .. is located the unit that is the subject of the housing repossession.

Claire’s two sisters testify at the hearing. Their testimony is to the effect that Claire is able to take care of herself and of her maintenance, but they take care of the finances and the administration of the property of their sister Claire. Since the month of March 2013 Claire occupies the unit situated in the basement of said building, a 3½. This occupation was temporary, because most of the furniture that furnished her former apartment, a 4½, is stored in other parts of the building. Claire gives witness at the hearing and her testimony is full of spontaneity and consistent with the testimony of her sisters.


The analysis of the facts

In ..., a Trust requested authorization to repossess the dwelling to accommodate in there the beneficiary of the Trust. Initially, it is important to consult Sections 1260 and following of the Civil Code of Quebec which deal with the nature of the Trust.

1260. A Trust results from an act whereby a person, the settlor, transfers property from his patrimony to another patrimony constituted by him which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and administer.


1261. The Trust patrimony, consisting of the property transferred in Trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right.

1262. A Trust is established by contract, whether by onerous title or gratuitously, by will, or, in certain cases, by operation of law. Where authorized by law, it may also be established by judgment.

According to the Civil Code the Trust has separate and independent assets from the assignment of the constituent. It compares to corporations that have also assets distinct of their leaders. In addition, the Trust is not a natural person and does not have any ascendants and descendants, relatives or allies.

Section 1957 of the Quebec Civil Code lists the persons entitled to the repossession of a housing.

1957. The lessor of a dwelling who is the owner of the dwelling may repossess it as a residence for himself or herself or for ascendants or descendants in the first degree or for any other relative or person connected by marriage or a civil union of whom the lessor is the main support.

The lessor 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.

Section 1957 of the Civil Code of Quebec deals with the public order and is of restrictive interpretation. The procedures for the repossession of a housing are governed by strict conditions that must be followed carefully. This article specifies that the landlord can repossess a dwelling to house his ancestors or descendants in the first degree there or any parent for whom he is the main breadwinner.


The decision of the Régie du logement

According to the Régie du logement, the jurisprudence is consistent with the fact that only individuals can apply for permission to repossess a dwelling. For instance, neither a partnership or a legal person # 1, nor a religious community # 2 can ask for permission to repossess a dwelling of which they are the landlord because they are not natural persons.

In this case, the Trust is not a natural person who has the distinct heritage of its constituents. It has no ascendants, descendants, allies or other parents for whom it is the main breadwinner. Therefore, this Trust can not hold the quality of an applicant in the context of an application for a housing recovery. The Régie considers that the jurisprudence dismissing the application for a housing recovery...by a corporation is applicable in this case.

1 – Gestion Cappelloc. Ranger. 2012 Q.C.C.Q. 1307
2 - Thivierge vs. Soeurs du Bon Pasteur 1976 DLC 48
3 - Fiducie Real Lacroix vs. P. Barbotin 2013 QCRDL # 24989

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