Abandonment of the housing by the tenant: a right that cannot be used for all evils

Article locked Published on by Me Annie Lapointe

Topic(s): Legal

Some nuisances or particular situations can cause fears, founded or not. This is particularly the case when talking about mould, asbestos or even bugs in a housing. Do not jump to conclusions however, not all moulds are dangerous. The tenant cannot, therefore, in all the cases where one invokes mould, asbestos or other potentially dangerous situations, clear off and move out without any responsibility. It will have to be taken case by case, and only exceptional situations will justify a premature departure.

In a recent situation (1), tenants asked for the termination of the lease because they claimed that their housing was unfit for habitation. For her part, the landlady believed that the tenants left illegitimately and she claims damages from them.

The situation at the origin of the conflict was water damage in the bathroom of the basement: there was mould to be noticed in the walls of the bathroom, and asbestos in the tiles that were put in there.

According to the Régie’s judgement, the landlady tried to plan the completion of the work to which the tenants had agreed. It seems however that the presence of asbestos had changed their position and they now refused access. Evacuation, during the works, was not envisaged following the verifications with the insurer of the landlady.

The judgement states the tenants' concern about their health and the one of their children. Anyway, the tenant reports allergies, which are not proven by any medical evidence according to the judge.

The tenants finally notify the landlady at the end of the month of December of their departure on January 31st. The work is then done at the departure of the tenants. The housing is re-rented on the following July 1st.

The landlady claims rents from the months of February to June and energy costs. She gives proof of advertisements published since the month of January. Moreover, the landlady reports work done by a specialized company that she had to hire to remove cat urine odours.

The judge therefore assesses whether the tenants were allowed to leave the dwelling in this way. In his analysis, the judge elaborates on the notion of abandonment of a housing. In fact, to justify abandonment of a housing, it must be unsuitable for habitation, i.e. it must be considered as "a serious threat to the health or safety of the occupants or the public. It may also be declared as such by a Court or other competent authority".

The judge also cites a judgement (2) which recalls that not all dwellings in a bad state of habitability are necessarily unfit for habitation. It is up to the tenant to prove the serious threat to the health or safety of the occupants. And it is also necessary to establish the causal link between the state of the dwelling and the threat it constitutes.

In the present situation, the judge decides that the tenants' decision to leave is not justified:

“ 31 The tenants were concerned about the presence of asbestos in the basement and concluded that they had to leave the housing to safeguard the health and safety of their family.
32 However, they have not proved the improper nature of the housing. According to the evidence given, the housing did not constitute, in the month of January 2015, a serious threat to the health or security of the tenants.
33 The type of mould in question is not identified, the dangerousness of the presence of asbestos in the basement and the causal relationship with the symptoms described by the tenant was not demonstrated.”

Leaving illegitimately before the end of the lease, the tenants then become liable for damages suffered by the landlady.

For her part, the landlady had the obligation to minimize the damage and try to re-let the housing as soon as possible. By agreeing to sign in the month of April a lease for July 1, the Régie du logement decided that this was a business decision and does therefore not award damages until the end of the lease, but only until the day of the signing of the new lease in April. The energy costs are also deducted, because a portion of the consumption was used to carry out the work. Part of the cleaning costs for urine odours were also granted to the landlady.

The tenants in this situation were sentenced to pay $4,961.86.

(1) 190869 36 20141223 G, 227601 36 20150715 G, 2017 QCRDL 30955.
(2) Boivin v. Arianth House Corporation, 2010 QCRDL 16527.

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