For a tenant, abandoning their home is a way of taking justice into their own hands, by leaving the premises and attempting to end their lease without the intervention of a court. However, the decision to abandon your home should not be made on a whim. Indeed, there are conditions that must be met if one wishes to abandon one’s dwelling and if the Tribunal finds that the abandonment was not justified, the tenant may have to compensate the landlord. In this context, it may be wise to consult with a tenant lawyer before proceeding with the abandonment. Our lawyers also specialize in landlord law.
Conditions for abandoning one’s home
The Civil Code of Québec states that in order to abandon one’s dwelling, it must be unfit for habitation.
The same Code also specifies that:
A dwelling is unfit for habitation if its condition constitutes a serious threat to the health or safety of the occupants or the public, or if it has been declared unfit for habitation by the Tribunal or by the competent authority.
It is up to the tenant to prove, if the landlord applies to the Tribunal, that the dwelling was in fact unfit for habitation. In addition, the condition of the accommodation must not be the result of the tenant’s fault. There must be a serious threat to health or safety. Thus, only very serious situations justify abandonment. For example, a malfunction in the home’s electrical system creating a risk of fire, a severe and prolonged infestation of vermin, flooding, the presence of very large amounts of mould or the absence of heating in winter were considered serious threats to health or safety.
The danger must be immediate and objectively assessed. Indeed, the Court will consider whether an ordinary person, exposed to the same conditions as the tenant who has abandoned the property, can live in the dwelling concerned without his health or safety being threatened. The Tribunal will consider the objective facts submitted by the landlord and tenant. It will therefore not take into account the tenant’s subjective fears and psychological state.
Since there must be a serious threat, it must be understood that it is not enough for the condition of the dwelling to cause inconvenience to the tenant to justify abandonment. For example, the majority of case law has held that the presence of bed bugs, even in large quantities, is not a serious threat to health or safety that renders the dwelling unfit for habitation, but simply an inconvenient situation. Similarly, the mere presence of radon or uranium in the dwelling is insufficient to justify its abandonment by the tenant. In such a case, it must be proven that the quantity present is greater than a legal standard or Health Canada guideline.
According to case law, there are five criteria that must be met in order for a tenant to abandon his or her dwelling:
- The problem is related to the building itself;
- The condition of the dwelling has been previously reported to the landlord;
- The landlord did not act on the denunciation;
- The tenant has left because of the unsuitable condition of the dwelling and, if the tenant’s health is at stake, medical evidence must be produced;
- There must be a causal link between the condition of the dwelling and the damage claimed.
According to the first criterion, the threat must be to the physical condition of the dwelling. A tenant cannot therefore abandon his dwelling on the grounds that he does not get along well with his landlord or because a neighbour is making too much noise, for example. In these cases, there are other solutions.
In addition, housing that is unfit for habitation should not be confused with housing that is in a poor state of habitability. According to the Civil Code, and in housing law, a dwelling in a poor state of habitability is in a less serious situation than a dwelling unfit for habitation. Indeed, while the latter poses a serious threat to health or safety, a dwelling is in a poor state of habitability if it is unhealthy or does not comply with the regulations of the municipality in which it is located, without being a serious danger to health or safety. If the dwelling is only in a poor state of habitability, it is impossible to abandon it.
Dwelling declared unfit for habitation by the Tribunal or the competent authority
The municipal authorities and the Régie du Bâtiment may, in an inspection report, declare that a dwelling is unfit for habitation. The Tribunal may also do so on its own initiative, even in the case of a dispute that does not concern the condition of the dwelling. It must therefore order the evacuation of tenants if necessary, regardless of what the parties to the dispute think.
It should be noted, however, that most of the time, the tenant must prove the condition of the dwelling himself, without the support of the Court or an inspection report. In most cases, this proof is very difficult to make.
Housing Abandonment Process
The Civil Code provides that if a tenant decides to abandon his dwelling, he is required to notify the landlord of the condition of the dwelling, before the abandonment or within 10 days thereafter. The Tribunal administratif du logement provides a model notice of abandonment of housing. It is therefore crucial to send the notice to the landlord within the legal deadline.
The Code also provides that if the tenant gives such notice, he or she is exempt from paying rent for the period for which the dwelling is unfit for habitation, unless the condition of the dwelling is due to the tenant’s fault. However, it should be noted that this exemption does not apply if the notice is sent but the tenant still remains on the premises. In this case, the tenant will be responsible for the rent.
Also, it is important to note that if the tenant leaves the dwelling without having given notice within the required time, this constitutes eviction. The law stipulates that in this case, the lease is terminated. This means that the tenant will not be able to return to the unit once it is fit back into the unit and may have to compensate the landlord if the tenant has lost rental income.
However, if the property is completely destroyed, for example as a result of a fire, the tenant is exempted from sending the notice before proceeding with the abandonment.
If the notice is sent, the Civil Code of Québec requires the landlord to notify the tenant as soon as the dwelling is once again fit for habitation. The tenant must inform the landlord within 10 days if they want to move back in. If the landlord fails to respond within this period or refuses to reinstate the tenant, the lease is terminated without requiring the intervention of the Court, as provided for in the second paragraph of article 1916 C.C.Q.
If the tenant fails to provide the landlord with his or her new address, the same paragraph also provides that the lease is terminated by operation of law. Thus, if the tenant wishes to return to the apartment, it is in his interest to send his new address to the landlord. There is no time limit for providing it, as long as it is done before the dwelling has become fit for habitation again.
In some cases, a formal notice can also constitute a notice if it complies with certain formalities, including, among others, the new address at which the landlord can reach the tenant once the problem has been resolved. Moreover, a formal notice can sometimes be preferable to a notice, especially when the tenant wishes to bring an action for damages or a reduction in rent.
Application for termination if the dwelling is unfit for habitation
The tenant or landlord can apply to the court to terminate the lease if the unit is unfit for habitation. Thus, if the Tribunal grants the application, there will be no possibility for the tenant to return to the dwelling afterwards.
Application for the prevention of the unfit condition of the dwelling
As provided by law, the tenant can apply to the court to order the landlord to perform its obligations regarding the condition of the dwelling, if the non-performance is likely to render the dwelling unfit for habitation.
If you are wondering if you have the right to give up your home, please do not hesitate to contact us to discuss it with us.