If you have a DEMAND or need to institute legal proceedings, click here
If you receive legal proceedings against you (DEFENSE), click here
If you are a Landlord and your Tenant fails to respect its lease obligations, the following are the step by step guidelines:
STEP 1: LETTER OF DEMAND
The first step is to send a letter of demand as quickly as possible to remind the Tenant that he is in default and to remedy his default. Failure to remedy his default can result in a legal proceeding and a judgment may be rendered against him.
STEP 2: LEGAL PROCEEDINGS
If the tenant still doesn’t remedy his default, you will need to institute legal proceedings as soon as possible. It is crucial that the proceedings respect the model established by the Minister of Justice, which consists of the following possibilities:
1) Originating application and the summons
a) Originating application
You can sue the Tenant by filling an originating application for any of the following reasons:
- Non-payment of the rent;
- Violation of the contractual clause of the lease;
- Failure of the Tenant’s repairs;
- Disturbance of other tenants;
b) The summons
It is very important to attach to your originating application the summons. The summons will not only notify the defendant that the plaintiff has filed an originating application to the Court, but also mentions his obligation to answer this application within 15 days, as well as his duty to cooperate with the plaintiff to conduct the proceeding.
The summons also informs the defendant of his possibility to refer the originating application to the court having territorial jurisdiction by applying to the special clerk in the concerned district and by notifying the parties and the office of the court that is already seized of the case.
Finally, if the plaintiff is qualified under the rules governing the recovery of small claims, the summons informs the defendant that he can contact the clerk of the court to request a transfer of the originating application to the small claims division (the organisation must have less than 10 employees).
c) Answer to the summons
You must answer the summons in writing, personally or through a lawyer, at the concerned courthouse district. The answer must be within 15 days of this application or, if you have no domicile, residence or establishment in Quebec, within 30 days. The answer must be notified to the plaintiff or, if the plaintiff is represented, to his lawyer.
Content of answer
In your answer, you must state your intention to:
- Negotiate a settlement;
- Propose mediation to resolve the dispute;
- Defend the application and, as required by the law, cooperate with the plaintiff in preparing the case protocol;
- Propose a settlement conference
The answer to the summons must include your contact information and, if you are represented by a lawyer, the lawyer’s name and contact information.
d) Case protocol
i) The case protocol must be filed with the court office in the concerned district within 45 days after service of this present summons. In family matters or if you have no domicile, residence or establishment in Quebec, within 3 months of the summons’ service.
ii) Within 20 days after the case protocol, the court may contact you to a case management conference in order to ensure the orderly progress of the proceeding. The protocol is presumed accepted if you are not contacted.
e) Failure to answer
If you fail to answer within the limit of 15 or 30 days, as applicable, a default judgment may be rendered against you without further notice. You could also, according to the circumstances, be complied to pay the legal costs.
2) Safeguard order
Safeguard order is an order from the Court that can be attached to the originating application, to protect the Landlord’s rights in the event that:
a) The Tenant failed to pay his rent
b) The Tenant owes you arrears of rent
Exceptionally, regarding the safeguard order, the delay period may be reduced if the matter is urgent.
Reimbursement of attorney fees and cost
It is also possible for a Landlord to add a reimbursement clause to the lease, stating that if the Landlord must retain services of an attorney and/or institute any legal proceedings as a result of the Tenant’s breach of any of his obligations, the Landlord may recover from the Tenant any reasonable attorney’s fees and legal costs. Therefore, in the event of default of the Tenant, Landlord may recover the reasonable attorney fees and costs in a safeguard order or legal proceeding.
If your tenant abandons the premises during the term of the lease:
Please note that under all circumstances, the Landlord is required to mitigate his damages by attempting to relent the premises in question.
Failure on the part of the Landlord to relent the premises, Landlord may claim liquidated damages representing 6 months of monthly rent pursuant to case law. It is always advisable for the Landlord to protect itself by inserting a liquidated damage clause in their lease with their Tenant.
Even if a clause in the Lease claims liquidated damages representing 12 months of monthly rent, the courts are very reticent in awarding such a damage claim.
However, each case needs to be evaluated based on its merits.
STEP 3: THE RESULT (JUDGMENT)
Delay period for obtaining a judgment by default: between 60 days to 120 days depending on the urgency of the matter and the backlog of the court. It is possible to write a letter to the clerk of the court requesting an expedited judgment.
Once you receive a judgment:
i. You may have to wait an additional delay of 30 days to ensure that the case was not appealed before the Court of Appeal.
ii. In case of a default payment, you can:
- Seize bank accounts;
- Seize the salary in the hands of an employer;
- Seize movable or immovable property at the Land Registry office (if the judgment is greater than $10,000.00);
- Expulse your Tenant from its premises with an expulsion order.
This is a non-limited list of solutions to execute your judgment.
*Kindly see the following link for more detailed steps of a litigation process: DEMAND
RECEPT OF LEGAL PROCEEDINGS (DEFENSE)*
If you are a Landlord and you receive service of an originating application, the following are the step by step guidelines to follow:
STEP 1: CONSULT A LAWYER
We strongly suggest that you consult a lawyer to represent your interest once you receive an originating application.
You must answer the summons in writing, personally or through a lawyer, at the concerned courthouse district. The answer must be within 15 days of the present originating application.
If you fail to answer within the limit of 15 a default judgment may be rendered against you without further notice.
Here is a non-exhaustive list of reasons why you might receive an originating application:
- Roof needs to be repaired;
- Moisture problem;
- Water infiltration;
- Repairing of water damage;
- Dispute with the Tenant concerning the lease.
*Kindly see the following link for more detailed steps of a litigation process: DEFENSE
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 email@example.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.