The facts
The landlord owns a building of more than 200 units including the one occupied by the tenant. The landlord has given notice in writing to the tenants of his intention to modify the lease, upon renewal, in order to include the removal of the service of central air conditioning.
The amendment was rejected by a number of tenants and the landlord has turned to the Régie under article 1947 of the CcQ for a ruling on the said amendment.
The decision of the Régie du logement
The Régie du logement refused the change. According to its reasoning, when the parties sign a lease, they agree on all the terms and conditions that prevail throughout the duration of the lease. When the landlord and the tenant sign a lease they know what to expect for the future as they have planned in advance. The landlord may amend a condition of the lease only if he can show substantial grounds to change the original agreement. The decision applies the criterion set out by the Régie in the case Kilifils vs. Miskin:
“However, the law provides that a landlord may still request that certain conditions of the lease be changed thereafter. In a context of consensualism, the landlord must demonstrate substantial grounds to change the initial agreement between the parties.”
The judgment in appeal
According to the Court of Quebec the principle to prove a serious prejudice has important implications because the right to security of tenure can be perpetual as it survives even the death of the tenant.
According to the Court, it is easy to imagine situations where one party may wish to amend a lease negotiated five, ten or even thirty years ago, and this even if the condition set does not cause it serious harm.
The Régie du logement has already decided that the lawgiver would not have allowed the modification of a condition of the lease if he wanted the initial agreement to be immutable:
“The right to use an accessory exclusively for several years is never an absolute guarantee of maintaining the status quo for the future, otherwise, what would be the purpose of articles 1947 and 1952 of the Civil Code of Quebec that allow to modify a lease. A modification granted is, by the way, always a gap in the acquired rights of the tenant, whether it be a transfer of heating costs, the removal of a parking space, a garage or a shed. '
According to the judge of the Court of Quebec the Court does not have to decide whether the change is “fair and reasonable” or whether "the maintenance of the conditions of the lease will cause harm”, or if the change is “valid” or “justified” or if the “balance of inconveniences” favours one or the other of the
parties.
Because the lawgiver has not set a criterion to article 1947 of the C.c.Q the Court agrees that a request for modification of a condition of the lease must be decided on the basis of the objective aimed at by articles 1936 and following of the C.c.Q, i.e. the maintenance of the tenant in the premises.
The answer to the question asked by the title of this article is as follows:
“The amendment should be allowed if the preponderance of evidence is to the effect that it will not result in requiring the tenant to move. However, the disadvantages resulting from the change must be taken into account in determining the amount of rent as provided in Article 1952 of the C.c.Q.”
According to the evidence presented it is possible for the tenants to cool their homes by means of an appliance or individual systems.
In summary, one notices that air conditioning is essential but that the facts proved do not allow to conclude that the tenants will be forced to move if the amendment is allowed. The Court allowed the appeal and reversed the decision of the Régie du logement and turned the matter back to the Régie to determine the reduction in rent due to loss of service.
1. KILIFILS vs. MISKIN (1997) J.L. 200 (C.Q.)
2. FORTET vs. MCNICOLL (2003) J.L. 315, p. 316
3. SOCIETÉ 3505 STE FAMILLE INC. vs. POIRIER. C.Q. 500-80-003881-043 judge Bousquet p. 9 and 10.
The landlord owns a building of more than 200 units including the one occupied by the tenant. The landlord has given notice in writing to the tenants of his intention to modify the lease, upon renewal, in order to include the removal of the service of central air conditioning.
The amendment was rejected by a number of tenants and the landlord has turned to the Régie under article 1947 of the CcQ for a ruling on the said amendment.
The decision of the Régie du logement
The Régie du logement refused the change. According to its reasoning, when the parties sign a lease, they agree on all the terms and conditions that prevail throughout the duration of the lease. When the landlord and the tenant sign a lease they know what to expect for the future as they have planned in advance. The landlord may amend a condition of the lease only if he can show substantial grounds to change the original agreement. The decision applies the criterion set out by the Régie in the case Kilifils vs. Miskin:
“However, the law provides that a landlord may still request that certain conditions of the lease be changed thereafter. In a context of consensualism, the landlord must demonstrate substantial grounds to change the initial agreement between the parties.”
The judgment in appeal
According to the Court of Quebec the principle to prove a serious prejudice has important implications because the right to security of tenure can be perpetual as it survives even the death of the tenant.
According to the Court, it is easy to imagine situations where one party may wish to amend a lease negotiated five, ten or even thirty years ago, and this even if the condition set does not cause it serious harm.
The Régie du logement has already decided that the lawgiver would not have allowed the modification of a condition of the lease if he wanted the initial agreement to be immutable:
“The right to use an accessory exclusively for several years is never an absolute guarantee of maintaining the status quo for the future, otherwise, what would be the purpose of articles 1947 and 1952 of the Civil Code of Quebec that allow to modify a lease. A modification granted is, by the way, always a gap in the acquired rights of the tenant, whether it be a transfer of heating costs, the removal of a parking space, a garage or a shed. '
According to the judge of the Court of Quebec the Court does not have to decide whether the change is “fair and reasonable” or whether "the maintenance of the conditions of the lease will cause harm”, or if the change is “valid” or “justified” or if the “balance of inconveniences” favours one or the other of the
parties.
Because the lawgiver has not set a criterion to article 1947 of the C.c.Q the Court agrees that a request for modification of a condition of the lease must be decided on the basis of the objective aimed at by articles 1936 and following of the C.c.Q, i.e. the maintenance of the tenant in the premises.
The answer to the question asked by the title of this article is as follows:
“The amendment should be allowed if the preponderance of evidence is to the effect that it will not result in requiring the tenant to move. However, the disadvantages resulting from the change must be taken into account in determining the amount of rent as provided in Article 1952 of the C.c.Q.”
According to the evidence presented it is possible for the tenants to cool their homes by means of an appliance or individual systems.
In summary, one notices that air conditioning is essential but that the facts proved do not allow to conclude that the tenants will be forced to move if the amendment is allowed. The Court allowed the appeal and reversed the decision of the Régie du logement and turned the matter back to the Régie to determine the reduction in rent due to loss of service.
1. KILIFILS vs. MISKIN (1997) J.L. 200 (C.Q.)
2. FORTET vs. MCNICOLL (2003) J.L. 315, p. 316
3. SOCIETÉ 3505 STE FAMILLE INC. vs. POIRIER. C.Q. 500-80-003881-043 judge Bousquet p. 9 and 10.