The Duty of the Landlord During a Lease Cession

Article locked Published on by Me Robert Soucy

Topic(s): Legal

Source: Messier Soucy, Avocats

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

The Duty of the Landlord During a Lease Cession

Tenants asked la Régie du logement to rule on the validity of a lease cession. The lease was for September 2006 to August 31, 2006 at a monthly rent of $680.

The facts

On September 6, 2005, the tenants sent a notice of cession of lease to the landlord. The notice designated a third party as rent surety guarantor. With the cession, the tenants submitted a request for rental containing pertinent information about the person ceding the lease; in other words, the person to whom they would like to cede the lease.

The landlord refused in writing the lease cession of September 8, 2005 for the reason that the proposed tenant had a very weak credit score.

The tenants claimed that the refusal was unjustified in spite of the fact that they admitted that the proposed tenant was a student and the only income he had was a scholarship. They added that the signatories to the proposed surety guarantor had an excellent credit rating. In addition, the tenants stated that the proposed tenant now held a job.

The landlord’s position

The landlord explained to the régisseure that there were reasonable and serious reasons for the refusal based on the proposed tenant’s inability to ensure the cost of rent, and on the negligence or refusal of the tenants in providing the required information about the person ceding the lease.

The landlord highlighted the fact that the person ceding the proposed tenant was a student, and that his financial situation was precarious. On the other hand, the Landlord also stressed that he could not verify the proposed surety guarantor as the person did not show up at an agreed meeting. He added that during the meeting with the proposed tenant, the latter stated that he only he would sign the lease as the surety guarantor was no longer required. The landlord also claimed the costs related to the cession process in the application of article 1872 of the Code civil du Québec.

The applicable law

Judge Michel Lassonde of the Québec Court stated the following regarding the serious reasons for refusing a lease cession:

‘’The use of the term “serious” by lawmakers clearly leaves the intention of the latter in limiting the margin of maneuverability of the landlord…’1

In fact, lease cession is a right given by Law, and it is one of the components of the right to maintain the premises. The landlord cannot put this right in question according to the cases provided for in Law without the consent of the tenant.

It is generally accepted has the landlord’s reasons must also be founded on the quality of the person ceding the lease. According to majority jurisprudence, the landlord’s refusal can be founded on the tenant’s ability to pay the rent, his insolvency or default to conform to the obligations of the lease – or faulty or delinquent behaviour.

Article 1870 of the Code civil du Québec obliges a tenant to give the name and address only of the proposed tenant. Only then, can the landlord begin the required measures to obtain the pertinent information while respecting the requirements under the personal Privacy and Access to Information Act in the private sector. As part of this law, without a doubt, the landlord can require pertinent information on the financial situation of the proposed tenant.

However, the landlord – as part of his obligation of good faith – must make sure that he has conducted reasonable efforts to collect all the pertinent information to make a sound decision.

Conclusion by the Régie

The Régie du logement ruled the following way:

‘’The Tribunal must, here, conclude whether there had been on the part of the landlord, a reasonable and serious procedure to obtain the necessary information needed before sending his refusal of the situation. This refusal was founded on the information he then had and constituted a serious reason according to article 1871 C.c.Q. and this, even more so, by virtue of the uncontested evidence submitted, the commitment of the proposed tenant was not truly supported by a surety guarantor as it was never shown the firm intention of this guarantor in this regard.’2

However, the Régie du logement refused to grant the lease cession costs claimed by the landlord as – according to the text of 1872 C.c.Q. these costs can only be granted if there is agreement in the lease cession. According to la Régie, such a request must be an autonomous gesture. The La Régie declared the lease cession invalid and rejected the request for lease cession costs.

  1. 1998 J.L. pg. 196-197

  2. 2006 J.L. pg. 28

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