Renting: The disclosure of a violent death in an apartment, is it mandatory?

Article locked Published on by Me Jean-Olivier Reed

Renting: The disclosure of a violent death in an apartment, is it mandatory?

Today, the belief in spirits that haunt homes or any other beliefs are a reality that may seem silly to some, but that is a major concern for others. Some movies and daily programs are taking very much advantage of this.

So, when comes the time to rent an apartment in which a violent death has occurred, you must ask yourself the question if you must notify the applicants about these events?

In a recent decision of the Régie du logement Judge Francine Jodoin¹, lingered on this problem and explains us that the candidate must be able to give free and informed consent. This consent may be vitiated when one of the parties deliberately causes an error in the mind of this candidate to push him to conclude the lease or to conclude it at different conditions.

In this particular case the tenant claims the cancellation of the lease and invokes the default of the landlord for revealing the facts associated with sordid crimes that occurred in the residence. He does not invoke that he was lied to, misled or deceived, but rather that relevant and capital information had not been disclosed.

Me Jodoin explains us that “The invalidity of the lease requires the prior demonstration that the tenant’s consent was not free and informed.”

“The Court therefore asked itself the question as to whether the disclosure of information about events such as those that occurred in the housing entered into the pre-contractual duty of disclosure.”

She concluded that “The landlord has not committed any act that could have caused the error in the tenant. However, it is subject to section 1375 of the Quebec Civil Code, which states:
“1375. The parties shall conduct themselves in good faith both at the time the obligation is created and at the time it is performed or extinguished.”

This principle has led to the pre-contractual obligation of transmitting information. Authors Pierre- Gabriel Jobin and Nathalie Vézina² stipulate the following:

“320 - Good faith - When it comes to identifying the basis of the pre-contractual duty of disclosure, the willful and fraudulent concealment, now codified in section 1401, second paragraph, are often invoked. The rules of fraud, moreover, are themselves a special application of the principle of good faith in the formation of the contract, which is set out in section 1375. (note this part) When one of the contracting parties occupies a privileged position in relation to the other one, either because of its knowledge of certain information, or because of its duty to take cognizance of it, must sometimes, in order to not deceive the legitimate expectations of the other, take the initiative to provide the latter with some critical information...”

And she justifies herself by citing Knight v. Dionne³ of the Court of Quebec in 2006 whose subject of litigation was the sale of a house:

“Therefore, the Honourable Judge Gabriel de Pokomándy wrote: “In such a case, it seems to us that it is up to the buyer to ask specific questions about phobias, fears or other subjective considerations that may in his view prevent the full enjoyment of a building or even to make the purchase thereof. When a question is raised as such, the seller has an increased duty of full disclosure and he must take care not to induce a false consent by his silence or reluctance on this part that seems important to the purchaser, risking that the validity of the sale would be challenged in the case that, knowing all the information, the other party would not have contracted or would have contracted on different terms. (Section 1401 C.c.Q.)

The Court has a lot of difficulty in agreeing that such events whose importance depends on the sensitivity, the phobias, the feelings or on purely personal and subjective apprehensions that are not related to the quality of the building, must be subject to mandatory disclosure.”

Further-on, Me Jodoin explains to us that: “The Court believes that these same principles can be transposed to the conclusion of a leasing contract. Added to this is the fact that it is easier to avoid a home that one does not want anymore than the purchase of a building. (Assignment, subletting, non-renewal).” 

"The Court does not believe that the landlord had a duty to disclose, before the conclusion of the lease, the existence of crimes that were committed many years earlier. Analyzed objectively, we can conclude that in 2010, the knowledge of these facts could adversely affect the enjoyment of the premises.”

In fact, the tenant remained in the premises for almost nine months and left in a hurry after becoming aware of the facts.

The Judge denied the request for cancellation of the lease and ordered the tenant to pay the rent lost by the owner because of his departure.

We believe that one should still be careful and always remember the rule of good faith explained above and that it should guide your actions. If in doubt, you do always better to disclose the situation especially if you feel, by the actions or words in discussions or visits, that this could be a problem for the tenant.

¹. 31 101230 - 058G and 31110526014G, Me Francine Jodoin, Régie du logement, on 20 March 2013;
² Jean-Louis Beaudoin and Pierre-Gabriel Jobin, in collaboration with Nathalie Vézina, Les Obligations, 6th Edition, Édition Yvon Blais, 2005, para. 320.
³. 2006 R.D.I. 398 C.c.Q. 2006 QCCQ 1260 (CanLII)

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