Tenants may be forced to move in or live in substandard or even unfit housing.
Although a tenant faced with such a reality has certain remedies to show his or her rights, including abandonment of housing, it is important to distinguish between a dwelling that is unfit for habitation and a dwelling that is in a poor state of habitability. Do not hesitate to schedule a consultation with a tenant lawyer before any action.
Since it can sometimes be difficult to make this distinction, we present you with an overview of the case law and the clues to determine whether your home is unfit for habitation.
What is an unfit dwelling?
According to the Civil Code of Québec, a dwelling is unfit for habitation when its condition constitutes a serious threat to the health or safety of the occupants or the public or when it has been declared as such by the court or by the competent authority. The word “health” used here refers to both the physical and psychological health of the tenant.
In order to assess whether the condition of the dwelling constitutes a serious threat to the health or safety of its occupants, it is important to consider all the facts and assess the situation objectively. This criterion also implies that the danger must be imminent, and would therefore only be encountered in the most serious cases, such as flooding, lack of heating in winter or a serious and prolonged infestation of vermin.
The Civil Code of Québec allows the court to declare a dwelling unfit for habitation, without the tenant even having to ask for it. Municipal authorities also have the power to declare a dwelling unfit for habitation; The tenant is therefore free to call on the inspection service of the city in which he is located in order to try to obtain a report.
Case law
The Tribunal administratif du logement has had the opportunity on many occasions to rule on the uncleanliness of a dwelling.
Severe and prolonged pest infestation
Case law has established that only a serious and prolonged infestation of vermin can be declared unfit for habitation. This infestation must also pose a serious threat to the health or safety of the tenant.
Thus, the presence of bees or ants does not allow a dwelling to be declared unfit for habitation. In Tarsone v. Villeneuve, the Tribunal held that even the presence of dead birds within the walls is not sufficient to conclude that the dwelling is unsuitable. In the case of Shiri v. Maislin, the administrative judge established that the mere presence of cockroaches does not render a dwelling unfit for habitation, as long as the infestation is not serious enough to constitute a serious threat to the health and safety of the tenant. However, in Dufresne v. Lachance the Tribunal finds that the presence of rats for several weeks in the unit constitutes a serious risk to the health and safety of the tenants.
In the case of a pest infestation, it is therefore important to keep in mind that their mere presence is not enough to declare a dwelling unfit for habitation. It is imperative to prove that this infestation is serious and prolonged, and that it constitutes a serious and serious threat to the tenant’s health.
Electricity and heating
A faulty electrical system that poses a serious fire hazard can render the dwelling unfit for habitation, depending on the case Perron v. Straw. The interruption of electricity for heating, hot water and stove also makes the dwelling unfit for habitation.
The dwelling will also be considered unfit for habitation if it is not heated at all, and this lack of heating puts the health and safety of the tenant at risk. On the other hand, it is necessary to be very careful, because a one-time defect, which occurs only once and is quickly repaired, does not allow the dwelling to be declared unfit for habitation.
Smells
Strong odours that persist over time can also be enough to declare a dwelling unfit for habitation. Indeed, in the case of Nguyen v. Rivard, tenants notice sewage odors and pet urine in their apartments. The smells are so strong that their daughter’s health has deteriorated since they arrived. The court therefore found that the dwelling was unfit for habitation.
However, the tenant of a dwelling located on the ground floor will not be able to have his apartment declared unfit for habitation due to the odours emanating from vehicles travelling on the street. Indeed, the case law explains that the tenant placed in such a situation should have chosen his dwelling better.
The clutter of the dwelling
Excessive cluttering that puts the tenant’s health and safety at risk, prevents the tenant from entering or leaving the unit, or constitutes a fire hazard may also result in a unit being declared unfit for habitation.
Humidity and mould
A dwelling with excessive humidity or with a significant and severe presence of mould may be declared unfit for habitation. However, it is essential to demonstrate that the moisture or mould constitutes a serious danger to the health and safety of the occupants of the dwelling concerned.
Water and flooding
A dwelling that is not supplied with water, that does not have potable water or that does not have running water is a dwelling that is unfit for habitation. Similarly, significant water infiltration also allows the Tribunal to declare the dwelling unfit for habitation.
Of course, the flooding of a dwelling also makes it unfit for habitation. Indeed, the court ruled in the case of Alvarez Zambrano v. Sergakis Inc., that “staying in these flooded areas, where water continued to seep in for several days, could certainly pose a threat to health.”
The behaviour of the landlord or other tenants
Since a dwelling is unfit for habitation when its condition poses a serious threat to the health or safety of the occupants or the public, the behaviour of the landlord or other tenants does not warrant a declaration of unfitness. Thus, even if the tenant concerned is threatened or subjected to sexual harassment, he or she will not be able to claim that his or her dwelling is unfit for habitation.
However, other remedies are available to the aggrieved tenant, such as the termination of the lease.
Abandonment of housing
In addition to an action for rent reduction, termination of lease and damages, a tenant who lives in a dwelling that is unfit for habitation may abandon it during the lease. However, the tenant must be very careful before choosing to abandon their home. If the abandonment appears to be unjustified or premature, the tenant could be ordered to pay the landlord damages for the loss of rental income. It is therefore wise for the tenant to collect and retain as much evidence as possible, as the burden of proof is on the tenant.
Here are some of the most common cases encountered by our customers:
If you find yourself in a situation of unfit housing, do not hesitate to contact our team specialized in housing law to defend your rights against your landlord.