Even if the dwelling is “dirty and smelling”

Article locked Published on by Me Jean-Olivier Reed

Topic(s): Legal

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.

Even if the dwelling is “dirty and smelling”


We are again at that most favourable time of the year for tenants to move out or to quickly abandon their dwellings.

Moreover, the good weather is back again with plenty of tenants who flee their housings, often in secret, at night.

But even if they might seem to have left, throwing away a tenant's furniture is never a good idea, unless they have written to you to do so. What seems waste to you could have significant value for the tenant. The risk of lawsuits for damages warrants taking the time to fully understand the concept of abandoning the dwelling and of being the custodian of a property in order to make an informed decision in the face of a given situation.

First of all, it is important to know whether the tenant has permanently left the dwelling or not.

The abandonment of the dwelling:

Attorney-at-Law Santirosi gives us some possible solutions in a 2019 decision and she cites Section 1975 of the Civil Code of Québec.

«... 1975. The lease is resiliated of right where a lessee abandons the dwelling without any reason, taking his movable effects with him; it may also be resiliated without further reason, where the dwelling is unfit for habitation and the lessee abandons it without notifying the lessor.»

40   This provision does not at all define the term “abandonment of the dwelling,” but mentions lawful termination as an out-of-court sanction when a tenant leaves the rented property without proper reason and without informing the landlord of his intentions and takes with him all his/her personal movable property.
41   An abandonment of the dwelling assumes that a tenant intends to evade his obligations and usually, the removal of the furniture, the departure in secret and the failure to pay the rent are good indications of the intentions of the tenant.
42   In this case, the rent was paid, the tenant had kept a set of her keys, the furniture was still in the unit and she had informed the landlord of her intentions. The move of the household appliances, on September 9, did not allow the landlord to assume abandonment or a quick moving out. Moreover, even if she had abandoned the dwelling, the landlord should not have disposed of the property in such a cavalier manner.

In addition, the quality of the goods in the housing should never be presumed:

43   The Tribunal is aware that according to the photographs taken, most of the dwelling was cluttered with worthless objects and waste. Mrs. Lagacé's testimony makes it clear that the housing was also dirty and smelling. But there is no evidence to suggest that the tenant would not come back to collect what could still be useful and at the same time take care of the cleaning.... »

The judge ordered the landlord to pay $1490.65, including $545 in furniture and rent reimbursement.

If the situation meets the criteria of paragraph 41 of the above decision, you can change the locks and re-rent the dwelling. You should also be aware that a tenant who departs remains financially responsible until the housing is re-rented.

Finally, as the owner has an obligation to minimize his requested damages, he will have to advertise the dwelling to rent quickly and keep proof of these advertisements for a claim and evidence in court.

St-Martin vs Tamborriello, 2019 QCRDL 11694 (CanLII)

Custodian of property:

If the tenant leaves only some of his property in the dwelling but most of the main property has left, caution is still required. Both for the concept of abandonment of the dwelling and custody of the property. If in doubt, apply to the Housing Tribunal for eviction.

But as soon as you have movable effects remaining in the dwelling the owner must keep them and respect the rules of section 944 and following of the Civil Code of Québec.

On the other hand, you will have the right to claim the cost of storing these movable effects if necessary.

In the decision Parent vs Guay, 2018 QCRDL 329 (CanLII), the tenant left the premises around July 5, 2015, leaving some property on site.

The tenant was claiming damages for renting a truck and losing property. The evidence was contradictory as to whether an agreement had been made or not.

The owner did indeed store the property in the basement of the building. He sent a letter in November 2016 giving his tenant three months to pick them up after which he would donate them to charity. He finally handed over the property to the tenant 16 months after he had left.

The judge decides the claim as follows:

« ... 22] The applicable law in this case is section 1978 of the Civil Code of Québec, which requires that the formalities of section 944 of the Civil Code of Québec be followed, which read as follows:

“1978. The lessee, on resiliation of the lease or when he vacates the dwelling, shall leave it free of all movable effects except those which belong to the lessor. If the lessee leaves movable effects at the end of the lease or after abandoning the dwelling, the lessor may dispose of them in accordance with the rules prescribed in the Book on Property which apply to the holder of property entrusted and forgotten.”

“944. Where a thing that has been entrusted for safekeeping, work or processing is not claimed within 90 days from completion of the work or the agreed time, it is considered to be forgotten and the holder, after having given notice of the same length of time to the person who entrusted him with the thing, may dispose of it.”

23   And the provision is made under section 945 of the Civil Code of Québec:

“945. The holder of a thing entrusted but forgotten disposes of it by auction sale as in the case of a found thing, or by agreement. He may also give a thing that cannot be sold to a charitable institution or, if that is not possible, dispose of it as he sees fit.”

24   If, however, the owner of the goods wants to recover his forgotten items, he must follow the rules of section 946 of the Civil Code of Québec, which stipulates:

“946. The owner of a lost or forgotten thing may revendicate it, so long as his right of ownership has not been prescribed, by offering to pay the cost of its administration and, where applicable, the value of the work done. The holder of the thing may retain it until payment.
If the thing has been alienated, the owner’s right is exercised, notwithstanding article 1714, only against what is left of the price of sale, after deducting the cost of its administration and alienation and the value of the work done.”

25   In summary, the tenant had an obligation to leave the dwelling free of all his movable effects when he abandoned his housing and, as he failed in his obligations, he could have claimed his property by offering to pay the value of the work done under section 946 of the Civil Code of Québec.
26   The Tribunal finds that the tenant was negligent in leaving his personal property for more than a year before his first attempt to recover it, at the insistence of the landlord on or about July 5, 2016.
27   With respect to the missing dresser and the piece of furniture, no physical evidence was submitted to the Tribunal and, moreover, his furniture is not listed in the notice sent to the landlord dated September 30, 2016.
28   The Tribunal is of the view that the amount claimed by the landlord was not excessive in this case and that it was very reasonable and thus, the tenant was, in a way, the architect of his own misfortune and that there is contributory fault on his part since, on the one hand, he delayed before attempting to recover his movable effects, he refused to pay a fair amount for the storage of these goods and finally he never validly set an appointment with the landlord to get them back.
29   In the end, nothing was paid to the landlord for the storage of the furniture, but it goes without saying that the Tribunal does not hear any request from the landlord to do so.
30   On the other hand, it is relevant to recall that sections 2803, 2804 and 2845 of the Civil Code of Québec provide that a person who wishes to assert a right must prove the facts in support of his claim, and this, in a predominant way, the probative force of the testimony and the evidence being left to the Tribunal's discretion.
31   CONSIDERING that it was the tenant who failed in his obligations by leaving his furniture for more than a year in the basement of the landlord's building;
32   CONSIDERING the assessment of the evidence before the Tribunal, the Tribunal considers that the tenant did not demonstrate, on the preponderance of evidence, that he had in fact made valid appointments with the landlord to retrieve his furniture and that he did not want to pay the $300 administration fee claimed by the landlord to recover it and that, therefore, there was a contributary fault on his part, and therefore the Tribunal considers the claim for both truck rentals unjustified;
33   CONSIDERING that the tenant has recovered his furniture as of December 5, 2016, the Tribunal rejects the claim regarding the furniture;

34   REJECTS the request of the tenant who bears the costs of the latter.... »

It is therefore important to understand the importance of sending a formal notice to the former tenant who left property on site to pick up his goods within 90 days of receiving the letter in order to comply with the rules of section 944 of the Civil Code of Québec.

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