You’ve just taken possession of the apartment you signed a lease for a few weeks ago. However, when you move in, you realize that your new home is unsanitary: food had been left behind by the previous tenant, which attracted insects. In addition, you notice a hole in the ceiling of your kitchen, probably caused by water damage. Caught off guard, you wonder what your rights are in such a situation?
Owner’s Obligations
In principle, the Civil Code of Québec states that the landlord has the obligation to deliver a dwelling in a good state of repair, cleanliness and habitability:
1854. The landlord is required to deliver the leased property to the tenant in a good condition of repair of any kind and to provide the tenant with the peaceful enjoyment of it for the duration of the lease.
He is also required to guarantee to the tenant that the property can be used for the purpose for which it is rented, and to maintain it for this purpose throughout the term of the lease.
1910. The landlord is required to provide a dwelling that is in a good state of habitability; He is also required to maintain it as such for the duration of the lease.
The stipulation by which the tenant acknowledges that the dwelling is in a good state of habitability is of no effect.
1911. The landlord is required to deliver the unit in a clean state; The tenant, for his part, is required to maintain the dwelling in the same condition.
When the landlord carries out work on the unit, he or she must restore the unit to a clean state.
The tenant is presumed to have received the apartment in good habitability. In order to dispel this presumption, new tenants are often advised to take photographs before installing their furniture. This will also allow the tenant to avoid reproach when he leaves, since he is also required to return the unit in the same condition as he received it, under article 1890 of the Civil Code of Québec.
In fact, some landlords have their tenants sign declarations stating that the unit was in perfect condition when they arrived. However, it is important to note that such a clause has no legal value.
Scope of these obligations
The landlord has the obligation to deliver the property, or in other words, to allow the tenant to take possession of the premises with all the accessories and services attached to the property. The accommodation issued must be in a good state of repair, habitability and cleanliness.
This obligation is one of result, which means that it is not enough for the landlord to show that it has taken reasonable steps to fulfill these obligations, or that it has behaved prudently and diligently with respect to them. However, it is necessary for the tenant to demonstrate, on a balance of probabilities, that the dwelling is unhealthy and uninhabitable. In particular, the dwelling must be affected by significant defects that significantly and substantially diminish the enjoyment of the dwelling.
The habitability of the home can be affected, among other things, by the presence of bed bugs or rats, the absence of a sink in the kitchen or a functional toilet in the bathroom. Similarly, the landlord has an obligation to deliver the unit in a good state of repair. This means that repairs, whether necessary or agreed-upon, must be completed before the tenant moves in. For example, in one case, the tenant was able to cancel his lease because the landlord had not made the repairs he had agreed to make.
Finally, the landlord cannot issue a dwelling that is unfit for habitation, which means a dwelling whose condition poses a serious threat to the health or safety of tenants or the public, or one that has been declared unfit for habitation by the court or by the competent authority. Essentially, in order to determine whether a dwelling is unfit for rent, it is necessary to objectively determine whether it would be unsafe to live in it:
The courts interpret these criteria very narrowly, and great care must be taken before declaring a dwelling unfit for habitation.
Here are some of the most frequent cases encountered by our clients: Representation of tenants, Abandonment of housing, Pets, Rent increase, Deposit request, Rent deposit, Rodent infestation, Unfit housing for habitation, Delivery obligations, Repairs, Neighbourhood disturbances, Validity of the lease, Sale of housing
Tenant’s recourse
The tenant has several recourses if the landlord fails to meet his obligations when the property is delivered.
If the landlord fails to deliver a unit that is in a good state of repair and habitability, the tenant can seek damages, specific performance, a reduction in rent for the period during which the landlord was in default, or a termination of the lease.
In the most serious cases, such as when the dwelling is unfit for habitation, the tenant may refuse to take possession of it. In these circumstances, the lease will be terminated by operation of law and the tenant will subsequently be able to claim damages, as well as reimbursement of the rent already paid.
However, it is important for the tenant to exercise caution before refusing to take possession of the unit, since in the event of an unjustified refusal, the landlord will be able to claim the lost rent. In addition, the tenant must also give the landlord a chance to remedy the situation before refusing possession. Of course, if the landlord acts quickly to repair the damage caused, the tenant will no longer be able to refuse to take possession of the unit afterwards.
Finally, it is important to keep in mind that each situation is unique and to exercise caution and diligence before leaving a home that you deem unsuitable. Of course, if you are in such a situation and do not know how to proceed, do not hesitate to contact one of our lawyers specializing in real estate law who will be able to advise you on the next steps.