The subtenant does not benefit from the right to maintenance on the premises

Published on by Me Bill Kostopoulos

Topic(s): Regulation

Source: Messier Soucy Avocats

The subtenant does not benefit from the right to maintenance on the premises
In the decision Saghbini v. Azar 1, the lessor requests the cancellation of the lease and the expulsion of the tenant, plus the provisional execution of the decision in spite of the appeal, the whole with the legal expenses.

The lease begins on July 1, 2011 until June 30, 2012 at the monthly rent of 865 $, payable on the first day of each month, intervened between the tenant Rania Azar and the lessor Ibrahim Saghbini, on March 1, 2011.

It is established that Mrs Azar has been tenant of this dwelling for several years. Since 2009, Alain Fournier is the only subtenant of the housing.

Following the signing of this last lease, the lessor and Mrs Azar verbally agree to cancel this lease even before it has come into force. On June 1, 2011, the tenant confirms this agreement in a letter addressed to the lessor. She commits herself to delivering a notice to the subtenant and to other occupants of the housing so that they leave the dwelling by July 1, 2011.

Indeed, on June 8, 2011, Mrs Azar delivers to the subtenant the ten-day notice envisaged in article 1940 of the Civil code of Quebec which enacts:

“1940. The sublessee of a dwelling is not entitled to maintain occupancy.
The sublease terminates not later than the date on which the lease of the dwelling terminates; however, the sublessee is not required to vacate the premises before receiving notice of 10 days to that effect from the sublessor or, failing him, from the principal lessor.”

On June 16, 2011, Alain Fournier writes to the lessor to notify him that he refuses to leave the housing. He claims that he became tenant of the housing as of the second year of the sub-renting. The prolonged absence of Mrs Azar from the housing made a figurehead of him.
First, it is allocated to the subtenant who claims to be entitled to the maintenance in the premises, to prove the facts in support of his allegations. However, he does not present any proof in support of his claims. He does not prove that one of the parties to the litigation is used as a figurehead for someone else. The tenant has never given up her rights. She even concluded a new lease with the lessor on March 1, 2011.
The fact that the lessor provided him a T-4 statement for the property taxes relating to the housing is not in itself an admission nor a recognition of the lessor of his status of tenant. The lessor does nothing more but conform to the regulations of the law by giving such a statement to him.
According to article 1940 of the Civil code of Quebec, the subtenant is not entitled to the maintenance in the premises. The principal lease between the lessor and Mrs Azar ended on June 30, 2011 by assent of the parties. A notice was delivered to the subtenant requiring from him to leave the housing at the end of the lease. The sub-letting cannot go beyond the date of the cancelation of the principal lease.
Consequently, the lease of sub-renting is cancelled since June 30, 2011. The subtenant who continues to occupy the housing after this date, does it illegally.
It is necessary to resort to the provisions of article 1889 of the Civil code of Quebec which enacts:

“1889. The lessor of an immovable may obtain the eviction of a lessee who continues to occupy the leased premises after the expiry of the lease or after the date for surrender of the premises agreed upon during the term of the lease; the lessor of a movable may, in the same circumstances, obtain the handing over of the property.”

Consequently, the Court notes the cancellation of the principal lease and the lease of sub-renting and orders the eviction of the tenant and all the occupants of the housing.

1 31 110704 066 G, 2011 QCRDL 25935, July 8, 2011, Me Suzie Ducheine, administrative judge

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