Victory for the landlord in appealing a decision of the Régie du logement

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Victory for the landlord in appealing a decision of the Régie du logement

A FAVOUR TO A TENANT - EVEN DONE FOR EIGHT YEARS - CAN NOT GIVE RISE TO AN ACQUIRED RIGHT

THE FACTS

The tenants have been occupying, for several years, a housing unit located in a building of 24 units. In the early 2000’s, the parties were bound by a lease and one of the tenants signed a document containing additional clauses specifying that only one parking space was allocated per housing and that, in case one needed a second location, the payment of fees would be required.

A second lease was signed on January 20, 2013, concerning another apartment in the same building. This is the current lease at the time of the litigation.

In 2006, the landlord distributes, with the notice of lease renewal, a document containing additional clauses; paragraph 6 repeats it in the same terms as the previous document on parking lots and he mentions that an additional fee of $30.00 per month will be required in the event that a tenant wants a second parking space.

During the early 2000’s, the owner decided to install six (6) parking spaces closer to the main entrance, because the occupants of the building owned more than one car and because the coming of some visitors could be a problem.

At the same time the tenant obtains a parking permit for disabled persons, taking into account some mobility problems she is experiencing. She asked the landlady if she could occupy one of the new places at the front of the building, to facilitate her movements. The owner agreed to the request of the tenant, without however a document formalizing this occupation.

After almost ten (10) years of occupation of this second parking space by the tenant the owner sends them a notice, in December 2011, claiming from them the sum of $30.00 per month for this second parking lot. Following the refusal of the tenant to pay, the owner decided to claim the unpaid months at the Régie du logement.

THE DECISION OF THE RÉGIE

The Régie du logement rejects the request of the owner saying that the evidence did not convince the Court that she is entitled to claim from the tenant, for this second parking lot, after ten (10) years of free use without opposition from the owner.

The Régie completes its analysis by considering that it is more likely that the owner had agreed to let the tenant enjoy the closer parking lot for a person with a disability, considering their health and old age, without any other fees rather than the alternative consisting in claiming from them expenses afterwards.

The Régie added that such a long tolerance replaced the original clause signed by the tenant in 2000 and that said tolerance necessarily implied a waiver, implicit or explicit, to the implementation of the regulation on the cost of a second parking lot.

THE JUDGMENT IN APPEAL

The decision of the Régie was appealed before the Court of Quebec. The Court found that the Régie seemed to confuse the tolerance of the owner with other legal concepts such as innovation, which is the substitution of a new payment obligation to a former one.

According to the appellate court, the law states that when a person occupies the premises with the permission of the owner, there then is the creation of a legal relationship called “lease by tolerance,” according to Section 1853 of the Civil Code of Quebec. This lease may apply to all kinds of situations, including parking lots.

The lease will thus be in tolerance, as much and as long as the owner does not object to the occupation of the tenant. It becomes inapplicable when the owner expresses his opposition to the occupation of the parking space. Once the notice was sent by the owner, in December 2011, the regulation on the second parking space became applicable and gave the right to the tenant the option to leave the site or pay $30.00 per month.


In a recent case, the Régie du logement has conducted an analysis of similar cases involving not only parking lots but also the possibility of installing a shed, the use of the common areas, or even the possibility to install a garden in the rear courtyard. These cases have unanimously decided that a favour granted even for eight years can not become law and that a courtesy or a privilege may cease once the owner expresses his desire to do so. Neither is there rise to any vested right in the matter.

The Court of Quebec therefore ordered the tenant to pay the owner an additional rent of $30.00 per month starting in January 2012:

“In short, the owner could not have asked additional rent for the months preceding the one in which he claimed expenses in accordance with the additional clause.

Upon the notice of December 2011, however, the situation was quite different and the tolerance of the landlord must give way the most, now, to the terms concluded between the parties.

In these circumstances, the evidence adduced by the Régie does not at all support the conclusion.”

The Court of Quebec therefore reversed the decision of the Régie du logement.


H. Robins v. P. Znaty, 31-090825-184 G 2010.12.30
128724 Canada Inc. v. Nicttolson, 2013 QC CQ 8084 p. 6

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