Attention for the illegality of a housing

Article locked Published on by Me Robert Soucy

Topic(s): Legal

Source: Messier Soucy Avocats

Attention for the illegality of a housing
The tenant requests the termination of the lease in her favour. She alleges that the landlord did not have a permit of the City to build and rent the apartment in the basement of a one-family home and that the housing development in the basement and its occupation were not consistent with regulations of the municipality and with the National Building Code in force.

The facts
The parties were bound by a lease from 1 May 2009 to 30 April 2010 at a monthly rent of $ 615.00. The tenant vacates her apartment on 1 August 2009 taking with her all her movable possessions. The apartment is rented to a third party only in December 2009. The landlord demands the rent lost for the months of August, September, October and November 2009, i.e. the sum of 2.460,00 $.

The evidence presented by the tenant
The tenant presents, to the Régie du logement at the hearing, the documentary evidence from the City proving that the landlord established and then rented an apartment without first obtaining a permit and a certificate of occupancy and that the (Planning) Service de l’aménagement of the City has noticed this derogatory situation in August 2009.

The applicable jurisprudence
The Court must take judicial notice of the law in force in Quebec according to the Civil Code of Quebec. Similarly, every person is required to take cognizance of public laws. Regulations of the City Council shall be deemed to be public laws without the need to plead them specifically, according to the Cities and Towns Act, RSQ, c. C-19.
Under the Regulations of permits and certificates of the City the development and occupation of an additional dwelling in a one-family unit are prohibited when a permit has not been previously granted.

The permit is issued only if the apartment complies with the applicable conditions and standards or when it is on the way of complying according to the plans submitted.
The tenure of the apartment is prohibited until a certificate of occupancy has been issued. The certificate of occupancy is issued only if the property complies with zoning and building regulations. Municipal regulations, including the Regulations on permits and certificates, must be respected by the owners and occupants of the building. Whoever allows any occupation or unauthorized user in contravention of the regulations commits an offense.

The decision of the Régie du logement
According to the director (1) the development of the housing in the basement and its occupation were therefore illegal all throughout the lease, from the time of issuing the housing until the departure of the tenant.

A legal disorder exists for the tenant of the apartment. The tenure by itself becomes most precarious when the construction of a dwelling is not permitted, and when the renting of the housing is not permitted and when the tenure of the housing is illegal. The tenant has no right of tenure in the premises and she has no guarantee against possible eviction. Under the Civil Code of Quebec, the landlord must protect the tenant against the legal disturbances of enjoyment of the leased asset. (Section 1858 C.c.Q.)

In addition, the tenant could not attempt to sublet or assign her apartment before leaving, because she did not want that her responsibility would be committed to a subtenant or assignee.
The landlord has not fulfilled his obligations relating to the safety and habitability in force in the City. He has not fulfilled his obligations with respect to the development of the housing, its renting and occupation.

The landlord has not substantially fulfilled his obligations and the tenant has thus suffered serious damage which allowed her to leave her apartment.
The Régie has rejected the request of the landlord for the rent lost. In addition, the tenant could have asked him to pay for his moving expenses and moral damage. The landlord has made a mistake with the renting of his housing.

(1) AZ-50909419. Leroux v. Jutras. Régie du logement.

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