A privilege granted to the tenant cannot become a right

Article locked Published on by Me Robert Soucy

Topic(s): Legal

Some landlords ask the Régie du logement to order a tenant to vacate the basement of the building that he occupies without right, as well as the two (2) parking spaces that he has illegally appropriated.

The facts
The facts put in evidence show that in the spring of 1997 a lease was entered into on July 1, 1997. This lease was renewed from year to year until June 30, 2016. The building concerned consists of a duplex in which the tenant has occupied for 18 years the housing located on the ground floor, consisting of 5 and a half rooms. Under the lease, the tenant benefits from a parking space inside the garage and has access to the backyard.

It is shown that, since the beginning of his lease, the tenant has used the basement, the second parking space in the garage and the outdoor parking space, while these spaces were not specifically included in his lease. On February 11, 2016, the landlords forward a notice of eviction to the tenant ordering him to release the basement no later than February 21, 2016. The tenant refuses to release the basement and submits that he has always used the basement with the permission of the former owner.

The former owner testified that from the beginning of the lease, he allowed the tenant to use the basement of the building to which he had direct access from his own dwelling. He also allowed him to use the second indoor parking space as well as the outdoor area. He specifies that he did not need the basement and parking spaces and that in that context he had granted the tenant a privilege by allowing him to use them. According to the former owner, it was clearly understood that he could, at any time, resume use of the basement and parking spaces. That's why the basement and the two parking spaces were never included in the lease, he says.

Court analysis
The evidence shows that the former landlord had allowed the tenant to use the basement of the building and the two parking spaces in addition to the one included in the lease. However, it appears that this was not a right provided for in the lease, but rather a privilege. According to the Régie du logement, the majority of jurisprudence states that a privilege may be withdrawn and that a long-term use does not have the effect of transforming that privilege into a condition of the lease.

In the decision MJN immobilier v. Monette, the Court gives a detailed review of the applicable jurisprudential principles:
"The court has already decided on the issue of acquired rights. In the case of Anjou v. Paradis, dealing with a parking space granted by the landlord, Judge Danielle Dumont expressed herself as follows:
"It is not because he has granted this favour for eight years that it has turned into law. A courtesy can always be removed as easily as it was given.''

Judge Claudine Novello of the Régie du logement also examines the decision Brosseau v. Les appartements B.L. and quotes the following excerpt:
"The parking space that the tenant enjoyed throughout this period was free and not a condition of the lease."
Judge Novello also quotes the Thomas v. George decision in which the tenant did not enjoy a privilege to create a garden:
'' Indeed, if the court can believe that the landlady allowed him to create a garden in the backyard during the two (2) summers, it appears to her that this was only a privilege that she granted him, and not a true condition of the lease. Such a privilege could therefore be withdrawn as easily as it had been granted, while the tenant cannot claim any right acquired in this respect."

Finally, Judge Novello cites the Bruneau v. Mayer case, where one had tolerated the use by a tenant of a part of the common portions to park a vehicle there, a shed and a fishing hut. The Régie du logement concluded:
"It is clear that the tenant has enjoyed in the past a tolerance or privilege that cannot become a right or obligation not registered in the lease. The services in question have in no way been agreed upon and are not contained in the lease. In some circumstances, even a permit could be withdrawn... Although it is quite understandable that tenants want direct access to the parking, the past use of the door in question is not an acquired right. The landlord was right or wrong to close access to it. The use of this secondary door is not a condition or service provided for in the lease."

Judge Novello finally concluded that the landlords were authorized to ask the tenant to release the basement on February 11, 2016, as well as the parking spaces not included in the lease in April 2016. Considering the tenant's voluntary departure on June 30, 2016, the Régie du logement did not have to order the tenant to vacate the basement and the two parking spaces.

It is clear that the majority of jurisprudence cases at the Régie du logement state that a tolerance or privilege may be withdrawn at any time by the landlord. A privilege can therefore never become a right or obligation not registered in the lease.

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