When Access ... Becomes Excess !

While negotiating a lease for a dwelling, the access to the courtyard-clause is often conceded to the tenant on the first floor without any other restriction than what the pre-established formula says in the lease. Unfortunately, this clause actually causes big headaches to many landlords whenever tenants take the initiative to put diverse installations in this courtyard…be it a swimming pool, a gazebo, a BBQ, a car etc…

This is only the beginning of a process that starts with a notice given and a subpoena sent to the tenant and eventually a request made to the Régie du logement. And, since the delays for a hearing at the Régie du logement are often quite long, the tenant will be able to enjoy his swimming pool all summer long. In fact, however astonishing this may seem, once the swimming pool has been installed, the landlord may not take justice in his own hands and dismantle it without having received, beforehand, legal permission to do so. Should he do so anyway, he would expose himself to a request for repayment of damage done with interest and a diminution of the tenant’s rent.

In fact, landlords would be ill-advised to think that a simple formula in the lease tells the tenants that they can do as they wish with whomever.

In principle, when one speaks about access rights, one usually refers to a right of passage to the back alley or a right of temporary use of the backyard which is often shared with the landlord. In principle, this right does not imply the right to build any installation whatsoever. Few tenants understand the implications of their right to access because the goodwill of the landlord in this matter is not guaranteed by the lease.

In a recent jurisprudence¹, a director of the Régie said that: « In the lease, the tenant has access to the yard and this without restriction. He is, moreover, covered by insurance for all eventualities. The landlord will have to send a notice of modification of this condition of the lease if he does not want there to be a swimming pool anymore ».

In fact, if access is not limited whatsoever in the lease, it leaves the tenant free to proceed with the installation of a swimming pool or any other installation for that matter. The landlord will have to proceed with a modification of the lease in order to forbid the installation of swimming pools because the right to access in the lease does not specifically forbid it.

That is why one understands that this decision could open the door to all kinds of excesses and we hope that this jurisprudence will not necessarily inspire others in the future.