Understanding the concepts of “Eviction” and “Repossession”.

Understanding the concepts of “Eviction” and “Repossession”: A comprehensive overview

Applicable Legislation:

Sections 1957 through 1970 of the Civil Code of Quebec (C.C.Q.) outline the applicable legislation on eviction and repossession matters.

In addition, for files heard in front of the Régie du Logement, it is important to be familiar with both the Act Respecting the Régie du Logement, CQLR c R-8.1 and the Rules of Procedure of the Régie du Logement, CQLR c R-8.1, r 5.

When can a landlord evict a tenant from an apartment?

It is important to note that a tenant has a general right to maintain occupancy of his dwelling. By operation of law, residential leases will renew at the end of their term. Nevertheless, the landlord may evict its tenant under specific circumstances accounted for in the law.

Section 1959 of the C.C.Q. stipulates three scenarios in which a landlord may evict a tenant:

(1) They want to subdivide the dwelling, usually into smaller units;
(2) They want to enlarge the dwelling; or
(3) The want to change the destination of the dwelling, meaning they want to dispose of it for a different purpose (i.e. a landlord wanting to convert a residential building into a commercial building).

Outside these three scenarios, a landlord may also “evict” a tenant and the other occupants of the premises following the resiliation of the lease as a result of the tenant’s failure to abide by his numerous legal obligations and/or his lease and/or the correlating rules and regulations of the building. A classic example involves the tardy payment of rent. It is possible for the landlord to obtain the resiliation of the lease if the tenant is over three (3) weeks late in rent payment or if the tenant’s habit of frequent late payments causes serious prejudice to the landlord.

In a legal context, terminology is key such that we wish to clarify the difference between the concept of eviction presented under section 1959 of the C.C.Q. and the outcome of eviction following the resiliation of a lease.

The exceptions to section 1959 of the C.C.Q.:

A landlord may not evict a tenant if either him or his spouse is:

(1) 70 years of age or older;
(2) Has occupied the dwelling for at least ten years; and
(3) Has an income equal to or less than the maximum threshold to qualify for low-rental housing according to the By-law respecting the allocation for dwellings in low rental housing.

Note that these conditions are cumulative.

The same restrictive criteria apply when dealing with repossession which we will elaborate further upon hereinbelow.

Following an eviction, if the tenant discovers that they were evicted for an illegitimate reason or in bad faith (i.e. to raise the price of rent), they can apply to the Régie du Logement seeking both moral and possibly punitive damages against the landlord.

How can a landlord evict a tenant from an apartment?

To evict a tenant, the landlord must send them a written notice, specifying the reason for the eviction and the date of eviction. The notice must also reproduce the content of section 1959.1 of the C.C.Q.

The C.C.Q. stipulates varying delays for sending the notice which depend on the term of the lease:

– 6 months before the expiry of the lease for a fixed term lease exceeding 6 months;
– 1 month before the expiry of the lease for a fixed term lease of 6 months or less; or
– 6 months before the eviction date for a lease with an indeterminate term.

If the tenant wishes to contest the eviction, they need to do so within one month of receiving the notice of eviction.

Once the tenant objects to the eviction, it is up to the landlord to justify the eviction for one of the permissible reasons. If the tenant does not file an objection, he will be deemed to have consented to vacate the premises.

The landlord is required to pay an indemnity to an evicted tenant equivalent to 3 months’ rent at the expiry of the lease and reasonable moving expenses upon presentation of vouchers. If the tenant considers that the prejudice he has suffered warrants a greater indemnity, he can also apply to the Régie du Logement to have the amount fixed. Where the court authorizes the eviction, it may impose other conditions as it considers just and reasonable.

However, where the court refuses an application for eviction and renders its decision after expiry of the period provided to avoid the renewal of the lease or to modify it, the lease is renewed.

If a tenant refuses to execute the judgment voluntarily, the landlord will enlist the help of a bailiff to force the eviction. A notice of execution must be served upon the tenant at least five (5) days before it is to be executed. The bailiff is not allowed to evict someone on a holiday or from December 24th to January 2nd. Any movable property left on the premises on eviction of the tenant is deemed to have been abandoned.

What’s the difference between eviction and repossession?

The process of repossession is similar to that of eviction, albeit different. Like an eviction, repossession also involves forcing a tenant to leave a dwelling for strictly-defined reasons.

Unlike an eviction, repossession entails a private use of the dwelling by the owner, either as a residence for himself, ascendants or descendants in the first degree (i.e. his parents or his children), any other relative or person connected by marriage or a civil union of whom the landlord is the main supporter or a spouse of whom the landlord remains the main support after a separation from the bed and board or divorce or the dissolution of a civil union (i.e. a former spouse).

As previously indicated, a landlord may not repossess the unit if either the tenant or his spouse is:

Note that these conditions are cumulative.

However, the landlord can repossess the dwelling in either of the following scenarios despite the tenant’s age, duration of occupancy, and income:

(1) The lessor is 70 years of age or older and wishes to repossess the dwelling as a residence for himself;
(2) The beneficiary of the repossession (e.g. the landlord’s ascendant or descendant in the first degree) is 70 years of age or over; or
(3) The lessor is an owner-occupant 70 years of age or older and wishes to have a beneficiary less than 70 years of age reside in the same immovable as himself.

The owner of an undivided share of an immovable may not repossess any dwelling in the immovable unless the only other owner is his or her spouse. He also cannot repossess a dwelling, without the tenant’s consent, if he owns another available place for the same rental price, in the same neighbourhood, and of the same type.

Most of the procedural requirements for repossession are similar to those for an eviction. The landlord must send a written notice reproducing the content of section 1959.1 of the C.C.Q. within the following delays:

In terms of content, the notice must reproduce the contents of section 1959.1 of the C.C.Q. and contain the date of repossession, the name of the beneficiary, and, where applicable, the degree of relationship or the bond between the beneficiary and the landlord.

In terms of the response delay, the tenant is bound to notify the landlord as to whether or not he intends to comply with the notice within one month after receiving it. If the tenant does not respond to the notice of repossession within the month after receiving it, he is deemed to have refused to vacate the dwelling at which point the landlord must apply to the Régie to obtain court authorization. This application must be made within the month after the refusal by the tenant.

The applicable indemnity differs in the event of repossession as the landlord may be obliged by the Régie to provide an indemnity equivalent to the moving expenses and impose certain conditions it may consider just and reasonable.

Where the landlord does not exercise his right of repossession or eviction on the fixed date, the lease is renewed by operation of law provided the tenant continues to occupy the dwelling with the consent of the lessor. In that case, the lessor, within one month after the date fixed for repossession or eviction, may apply to the court to have a new rent fixed.

The lease is also renewed where the Régie refuses an application for repossession or eviction and renders its decision after the expiry of the period provided to avoid the renewal of the lease or to modify it. The landlord may then, within one month after the final decision, apply to the court to fix the rent.

On a final note, a dwelling that has been the subject of repossession or eviction may not, without the authorization of the Régie, be leased or used for a purpose other than that for which the right was exercised. If the Régie gives the authorization to lease the dwelling, it will also fix the rent.

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneiderlegal.com

The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.