My landlord and I wish to redact two contracts, an authentic one and a fake one. If we can, which one of them will prevail in case of conflict of interest between our respective creditors?

Sebastian Fernandez, 11 August 2015

Monique is a student who just started her master’s degree in psychology at the University of Quebec at Montreal (UQAM). Native of Shrebrooke, she is looking for an apartment in Montreal since she’s pursuing her studies there. In July 2015, she signed a lease for 9 months with Vanessa, owner of a condominium situated in Montreal, binding both parties to the monthly rent of 900$.

However, Monique’s father, Maurice, wished her daughter to buy herself a property rather than just rent one. In order not to disappoint her father, Monique asks Vanessa if it would be possible to redact a sales contract which would be fake and, simultaneously, the lease which would be the real contract. Vanessa accepts this request.

But Monique has several debts to various creditors. Vanessa is also in a similar situation, owing several hundred thousand dollars to several creditors.

FAQ

Are Monique and Vanessa allowed to redact two contracts to hide to another person who’s not part to the contract its true nature?

It is necessary to understand that what Monique and Vanessa are doing here is known as simulation. When it comes to simulation, there are two contracts. First, there is the apparent contract, which is an act that does not really correspond to what the parties really want. In other words, it’s a fake. There is also a secret contract which reflects the true will of the parties, called the counter letter. The true will of the parties is expressed in the counter letter instead of in the apparent contract. In this case, the apparent contract is the sales contract, while the counter letter is the lease.

This way to proceed is absolutely legal. For there to be simulation, however, the counter letter must be concomitant of the apparent contract. In this case, the counter letter is concomitant of the apparent contract as both contracts were signed simultaneously.

Moreover, simulation can occur in three different ways. First, it may relate to the very existence of the contract, in which case the apparent contract is an illusion to make believe in the existence of a contract that doesn’t exist. It may also relate to the nature of the contract or to its object: for example, the apparent contract may correspond to a certain type of contract while the counter letter would correspond to another type of contract. Finally, the simulation can also relate to the parties to an act. That is the case when, for example, a person listed as a party to the apparent contract, but it is another person who is listed as this party in the counter letter. 

Is it the sales contract or the lease that has priority between Monique and Vanessa? Would it be possible for Monique or Vanessa to willingly invoke one or the other?

It wouldn’t be possible for Monique or Vanessa to invoke one contract or the other at choice since, between the parties, it is the counter letter that overruns the apparent contract, as planned by the Civil Code of Quebec. In this case, since the lease is the counter letter and the sales contract is the apparent contract, it is the lease that prevails between Monique and Vanessa over the sales contract. 

If both Vanessa and Monique’s creditors which to seize the condominium, which of these creditors will have priority for a seizure?

While the counter-letter prevails between parties, the situation is different regarding third parties. Indeed, towards persons who are not parties to the contract, if they are of good faith as they are not aware of the simulation and in case of a conflict of interest, it is the third parties who invoke the apparent contract who have priority. In this case, since there is a conflict of interest as both Monique and Vanessa’s creditors want to seize the condominium, Monique’s creditors will have priority to seize it as the apparent contract is a sales contract indicating the condominium is Monique’s property. 

Accueil Plus, easy and simple for international students coming to Québec !

L'appart.info, 7 August 2015

Each year at Montréal-Trudeau airport, Accueil Plus greets new international students, with is free service, arriving in Canada to study in a Québec university or college.

This service is designed to simplify your arrival in Québec. With, Accueil Plus you will have information about your school, the Montréal public transport, a temporary lodging and the way of living in Québec. You will have access to resources that will be useful for your stay.

Here are the requirements:

  • Having been accepted in a Quebec participating university or college.
  • Arriving at Montréal-Trudeau airport between Monday, August 10th and Tuesday, September 8th 2015.
  • Arriving in Montréal on a direct flight. Students who arrive from a connecting flight or whose port of entry isn’t the Montréal-Trudeau airport have to go through the customs and immigration procedures at their entry point.
  • Having a Canadian study permit number (F or IUC number found on the approbation document issued from the Citizenship and Immigration Canada Offices).
  • If applicable, having a valid Québec acceptance certificate (CAQ) for studies.

Register now. Don’t miss your chance! The online registration will resume on Monday, September 7th 2015.

I did my neighbor a favor during his absence. Do I have the right to demand a refund in all cases I do so?

Sebastian Fernandez, 4 August 2015

Louis is a young man living in an apartment belonging to Lea, an entrepreneur, and located in Montreal. Lea also lives in the building where this apartment is located, more precisely in apartment number 200. Louis lives next door, in the apartment number 202. In early August 2015, Lea decided to leave two weeks for vacation in Guadeloupe. Three days after her departure, there is a water leak in her apartment due to broken pipes. Louis, determined to limit the damages caused by this leak and to please Lea, contacts a plumber to fix the pipes. Once the plumber has finished, Louis does not tell him that this service was rendered for the benefit of Lea and assumes the costs, but keeps the bill to be reimbursed by Lea when she returns from her trip.

Once the plumber has left, Louis phones Lea and informs her of the situation. Lea thanks him for taking action and tells him that even though some problems may remain, to not do anything else until her arrival in Montreal. However, when the plumber fixed the pipes, Louis also noticed that the tapestry in the apartment was completely lost. He decided to make a surprise to Lea and contacted a professional to change the tapestry in the apartment.

FAQ

Does Lea have the obligation to refund Louis for hiring a plumber and for having the tapestry?

Firstly, it is important to understand that it is question here of management of the business of another. Such management exists when a person, the manager, spontaneously and under no obligation to act, voluntarily and opportunely undertakes to manage the business for another, the principal, without his knowledge, or with his knowledge if he was able to appoint a mandatary or otherwise provide for it. In this case, Louis is the manager while Lea is the principal. The management of the business for another, to help another person for instance, can have for consequence the creation of obligations such as an obligation to compensate the manager and it is the law, more precisely the Civil Code of Quebec, that is the source of these obligations. The creation of such obligations exists in the law to prevent the indifference of a person towards a situation requiring immediate action and the beneficiary’s ingratitude of a granted service.

However, it is necessary that all the conditions planned by the Civil Code of Quebec for management of the business of another are met for there to be, for example, obligation to compensate the manager; otherwise, there can be no management of the business of another nor, consequently, compensation. 

What are the conditions that must be met for there to be management of the business of another?

Firstly, regarding the principal, it is necessary that he did not mandate the manager to act. In other words, management of the business of the principal by the manager must be spontaneous and be the manager’s own initiative. Thus, the person who intervenes must not have mandate of legal or judicial representation to do so. In this case, Louis was not mandated, having acted on his own when he called a plumber to fix the pipe, with Lea asking him to do so. In addition, the principal must not have opposed the intervention of the manager before that intervention took place. Indeed, one cannot accommodate a person against its will and then expect to be compensated. In this case, Lea has in no way opposed to Louis’ intervention before it took place. However, she told Louis not to intervene after he phoned her, thus opposing to Louis’ change of the tapestry.

In addition, concerning the manager, it is necessary that he acted with the intention to act not for his own interest, but for another person’s. In this case, Louis acted for Lea’s benefit, in the perspective to limit the damage caused by the leak and, thus, help her and make her happy. Furthermore, the action taken must be opportune. It must consist in a truly valuable service, which is the case here since Louis’ interference allowed to prevent Lea to suffer considerable prejudice. Thus, his interference was opportune. 

Does Lea have to refund Louis for hiring the plumber and for changing the tapestry?

Lea does not have to refund Louis for changing the tapestry since she clearly told him on the phone to not interfere in her business until she comes back from vacation. Even though changing the tapestry seemed opportune to Louis, it remains that he was expressly mandated to not act. Consequently, Lea does not have, legally speaking, to refund Louis for changing the tapestry as one of the fundamental conditions for the existence of management of the business of another was not respected.

However, Lea must refund Louis for hiring the plumber that repaired the pipes. There is, in fact, management of the business of another in this case since all the conditions planned by the Civil Code of Quebec for there to be an obligation of compensation in the case of such management are met.

That being said, it is important to understand that the obligation to compensation does not compel the principal to indemnify the manager for unnecessary expenses or for the prejudice the manager suffered by his own fault. For instance, if Louis would’ve attempted to repair the pipes by himself without having the skills to do so and would have caused for damage, he would’ve had to bear the costs engendered by this. 

I’ve rented an apartment owned by more than one person and, consequently, I must pay them a monthly rent. May I pay the totality of the monthly rent to one of these persons and fulfill this obligation without having to pay anything to the other owner(s)?

Sebastian Fernandez, 28 July 2015

Mylène is a mechanic who just found a job in her field in Sherbrook. Since she’s looking for an apartment in this city, she consults classified ads in the local newspapers where she finds  Normand and Julien’s phone numbers, two co-owners of a building located in this city. After contacting them and meeting, they come to an agreement and sign a residential lease binding both parties from August 1st 2015 until April 1st 2015 at the monthly rent of 800$. This lease contains a clause of active solidarity.

Mylène pays the totality of the rent for the first month directly to Normand. Even though Mylène paid the totally of the amount due, Julien is unhappy since he would’ve liked Mylène to pay him at least half of the rent while the rest of the rent would’ve been paid to Normand. Therefore, Julien contacts Mylène and asks her to pay him half of the amount due for the monthly rents to come. Mylène tells him she won’t do it because there is nothing in the lease that requires her to and because it includes an active solidarity clause. However, Mylène is unsure and wonders if Julien would be legally entitled to force her to proceed the way he wants. To be sure, she contacts Julia, one of her friends who is a lawyer, to ask her a few questions on the matter.

FAQ

Can Mylène pay the totality of the rent only to Normand and pay nothing to Julien?

In this case, the lease includes an active solidarity clause, which has the effect of subjecting the creditors, Normand and Julien, to solidarity. When several creditors are subject to solidarity because of such a clause exists in a contract, their debtor, Mylène in this case, may pay the totality of the due amount to one of them and be released towards all of them of its obligation. Moreover, this type of solidarity allows one of the creditors to claim the total execution of an obligation towards a debtor. Considering this, Mylène can pay the totality of the monthly rent she owes to her landlords to one of them instead of having to pay half of the amount due to each of them and fully discharge herself of her obligation to pay her monthly rent by doing so. 

When a lease includes an active soldarity clause, does the lessee always have the possibility to chose to which landlord he will pay the totality of the rent?

No. When a lease includes an active solidarity clause subjecting various landlords to solidarity, the lessee can always pick the landlord to who he’ll pay the totality of the monthly rent. However, this is only possible as long as he is not sued by one of them. If the lessee is sued by one of the landlords, the lessee has to pay his rent to the landlord suing him. We must remember, too, that a formal notice is not a juridical action. 

Is it possible for the creditors to be subject to solidarity without an active solidarity clause subjecting them to it?

No. Since subjection of creditors to solidarity can only be contractual, there must always be an active solidarity clause to a contract for such solidarity to exist. 

Somebody I know commits towards my landlord to pay him my monthly rent. What are the impacts of such a commitment?

Sebastian Fernandez, 21 July 2015

Delilah is a medical student at the Faculty of Medicine of the University of Montreal. On August 15 2015, before starting her first session in this program, she rents an apartment in a building located in the metropolis. To do so, she signed with Emilie, owner of the building, a residential lease binding both parties from September 1st 2015 to May 1st 2015 at the monthly rent of 900$.

Three months later, Delilah has serious financial difficulties. Depressed because of her poor performance at school, she often goes to the Casino and loses a lot of her money there. By that very fact, she is no longer able to pay her rent and, consequently, she can no longer respect her contractual obligation to pay it. Because of this, she asks Yvan, her father, to commit towards Emilie to pay her Delilah’s monthly rent of 900$. Yvan accepts and meets Emily at her place. After a brief discussion, Yvan commits towards Emilie to pay her the monthly rent Delilah owes her.

FAQ

What difference is there between doing a favor to someone by paying its rent and committing to paying the rent in its stead?

Paying someone else’s rent to this person’s landlord is an indication of payment. It’s a liberality, a favor made to another person. However, it is also possible, in addition to paying another person’s rent to its landlord, to commit towards that landlord to pay the monthly rent, in which case it’s no longer simply an indication of payment, but a delegation of payment. When it is question of a delegation of payment, the landlord can claim the monthly rent to the person who committed towards him to pay it. Therefore, the difference between an indication of payment and a delegation of payment is whether or not the person paying the rent for another person committed toward that person’s landlord to pay the rent.

In this case, Yvan, Delilah’s father, committed towards Emilie to pay to her the monthly rent his daughter owes her. Therefore, it’s a delegation of payment

Can Emilie still claim the monthly rent to Delilah?

It depends if Emilie decides to release Delilah from having to respect her obligation to pay the monthly rent or not. As a matter of fact, although Delilah is the one who lives in Emilie’s apartment, Yvan has committed towards her to pay Delilah’s rent. However, Emilie may decide to release Delilah from her obligation to pay the monthly rent. If she refuses to release Delilah from this obligation, Emilie can claim the monthly rent to either Yvan or Delilah, in which case it would be an imperfect  delegation of payment. On the other hand, if she agrees to release Delilah from this obligation, she can only claim the monthly rent to Yvan, in which case it would be a perfect delegation of payment

If Yvan pays the rent and considering he committed to do it, can he live in the rented apartment instead of Delilah?

No. It is important to understand that Yvan’s commitment towards Emilie is independent from the commitment binding Delilah to Emilie. Therefore, even though Delilah is released from her obligation to pay the monthly rent thanks to Yvan’s commitment to pay it, Emilie still has to provide her with the peaceful enjoyment of the rented apartment and respect other contractual or legal obligations she has towards Delilah. If Emilie fails to respect her obligations, Delilah can always resort to the legal remedies that are legally available to her. 

My landlord wants to sell his right to claim the monthly rent from me to another person. Can he do this and if he can, under what conditions?

Sebastian Fernandez, 14 July 2015

Gerald is a worker who lives in an apartment located in a building in Montreal belonging to Maurice, a businessman. In March 2014, Maurice and Gerald signed a residential lease binding both parties for a period of two years, from April 1st 2014 to April 1st 2016, at the monthly rent of 750$. In August 2014, Maurice wants to start a company with one of his friends named Lucas. However, to do this, the two friends need to invest the sum of 50 000$. Lucas asked Gerald to get 25 000$ before September 1st 2015. If he fails to get this sum at this date, he can forget about the project. Even though Maurice really wants to start this company, he only has 22 000$ to invest. To get the missing 3 000$ he needs immediately, he wants to sell as soon as possible his claim against Gerald, which is his right to claim from him the monthly rent of 750$ until the lease they signed expires, at the price of 3 000$.

Maurice invites Gerald to have coffee with him and discuss his intention to sell his claim. After a short meeting, Gerald is worried about this situation and therefore consults his friend Henri, who is a lawyer, to make sure that his rights as a lessee are and can are protected and to make sure he won’t get fooled.

FAQ

What is an assignment of claims and what are the benefits of such an assignment?

The assignment of a claim consists in assigning to a third person all of part of a claim or a right of action which a creditor has against his debtor. By that very fact, this third person also becomes a creditor. Among the advantages of the assignment of claims, there is the fact that a creditor may acquire cash immediately and the opportunity to eventually make profits.

In this case, Maurice, who is Gerald’s creditor as a landlord, wishes to assign the claim he has against him, which is his right to claim Gerald the monthly rent of 750$ each first of the month until April 1st 2016. He wants to sell this claim for 3 000$ to immediately acquire the sum he needs, which is the assignment of claims’ apparent benefit here. By selling that claim at this price, he would gain the equivalent of four months of rent even though he would lose, in the end, a considerable amount sum in rents he could’ve claimed if he wouldn’t have sold his claim

Can Maurice assign his claim without accomplishing certain prerequisites?

No. As a matter of fact, several legal conditions must be respected for an assignment of claim to be valid and enforceable. If these conditions are not respected, the assignment of claim is not valid nor enforceable. Firstly, it cannot have the effect of making the debtor’s obligation more onerous than it was before or infringe his rights. Thus, for instance, Maurice could not sell his claim and decide with the potential buyer that he can now claim a monthly rent of 850$ to Gerald rather than 750$.

Moreover, the debtor, which is Gerald, the lessee, in this case, must acquiesce in it or receive a copy or a pertinent extract of the act of assignment or any other evidence of the assignment which may be set up against the assignor. If the debtor cannot be found in Québec, the assignment may be set up upon publication of a notice of assignment in a newspaper distributed in the locality of the last known address of the debtor or, if he carries on an enterprise, in the locality where its principal establishment is situated. In addition, it’s the assignor’s responsibility to prove that the debtor was informed. Therefore, it’s to the assignor’s advantage to make sure the debtor acquiesces to the assignment by singing a document that could serve of evidence of his consent and knowledge of the assignment in case there would eventually be a legal conflict on the matter. 

What happens if the required prerequisites to ensure the assignment’s validity are not completed?

If Maurice does not complete the required prerequisites to ensure the assignment of claim is legally valid, it would not be enforceable against Gerald. Thus, if these formalities are not completed, he must continue to pay his monthly rent to Maurice, regardless of what Maurice says, since the assignment is neither valid nor enforceable. 

My landlord has used fraudulent means to vitiate my consent to the lease. Is it possible to cancel it?

Sebastian Fernandez, 7 July 2015

Mathieu is a bachelor looking for a job. After finally founding one in Montreal, he looks for an apartment there. In June 2015, he meets Marcel, owner of a building located in the metropolis. Both parties come to an agreement and sign a residential lease binding them from July 1st 2015 to July 1st 2018 at the monthly rent of 900$. Mathieu decided to sign the lease because he and Marcel agreed that the apartment would be furnished and include a functional air conditioning system. However, upon his arrival at the apartment the 1st of July, Mathieu notices the air condition system isn’t functional and that the apartment isn’t furnished. Unhappy with this situation since he wouldn’t have signed the lease if he knew the owner wouldn’t have accomplished these obligations and provided that he already paid the rent for the month of July 2015, Mathieu refuses to live in the apartment and wishes to cancel the lease. In addition, Mathieu heard Marcel tell one of his friends on the phone that he will not furnish the apartment nor repair the air conditioning system and that he believes Mathieu wouldn’t dare to ask for the cancellation of the lease.

FAQ

Can Mathieu cancel the lease?

For a contract to be cancelled, one must first have a valid legal reason to require its cancellation. In this case, Mathieu was misled by Marcel to sign a lease that he wouldn’t have signed otherwise, if he would have known Marcel wouldn’t have, for instance, furnished the apartment. This is a fraud, more precisely a lack of consent consisting in deliberate misleading of one of the parties to a contract by the other, which may result from a deliberate lie, silence or reticence. To be in presence of such fraud, certain conditions must be met. Firstly, the fraud must’ve been decisive, which means that the party who believes was deceived wouldn’t have consented to the contract if it wasn’t misled. In this case, Mathieu’s belief that his apartment would be furnished and that he would have access to functioning air conditioning was determinant in his decision to sign the lease. In addition, the fraud must have been caused by one of the parties to the contract of known by this party. In this case, the fraud directly emanated from Marcel, one of the contractors, and was indeed known to him as he sought to deceive Mathieu knowingly, as demonstrated by the facts. Finally, Mathieu will have to prove Marcel’s intention to deceive him, in addition to the fraud itself.

Since we are in presence of a fraud by lack of consent in this case, Mathieu can ask invoke the lease’s nullity. As a matter of fact, any lack of consent can be sanctioned by relative nullity. However, since it is question of relative nullity here, only the victim of the lack of consent, Mathieu in this case, may invoke the contract’s nullity to cancel it. To do this, Mathieu will imperatively have to intent an invalidity action in court, as two parties cannot simply mutually consent to cancel a contract without a judge’s consent. Once in court, Mathieu will have to prove the fraud at the origin of his lack of consent that would justify the cancellation of the lease. 

What does lease nullity involve?

The nullity of a contract involves its retroactive disappearance. As a matter of fact, an annulled contract is deemed to never have existed. However, for this purpose, if one of the parties to the annulled contract accomplished wholly or partly its contractual obligations, a restitution of performances is required. In this case, Mathieu paid his rent for the month of July 2015 and Marcel, if a judge consents to the annulation of the contract, will have to reimburse him the paid rent. However, when the contract is a contract of successive performance such as a residential lease, the restitution is often put aside since restitution of enjoyment of property such as an apartment is, in theory, impossible. In such a case, the contract will cease to exist for the future only. Nevertheless, in this case, this doesn’t have to be taken in consideration since Mathieu did not enjoy the apartment. 

Can Mathieu obtain compensatory damages?

To obtain compensatory damages in addition to the contract cancellation, Mathieu has to prove he has suffered prejudice resulting from the reason justifying the cancellation. In this case, this reason is Marcel’s wilful misconduct consisting in misleading Mathieu into signing a lease he wouldn’t have signed if he wasn’t misled. For instance, if Mathieu can prove that because of Marcel’s wilful misconduct, he had to sleep in an hotel while he was looking for another apartment and wouldn’t have had to pay the fees related to the renting of a hotel room if Marcel would’ve respected his contractual engagements, a tribunal could condemn Marcel to pay these fees to compensate Mathieu for this prejudice. 

I paid my rent to a person who I thought was my landlord, but wasn’t. Can the true landlord claim the rent that remains unpaid to him?

Sebastian Fernandez, 30 June 2015

Dominique lives in a dwelling located in Montreal and belonging to Christophe. On February 1st 2012, both parties signed a lease binding them for a period of 9 years at the monthly rent of 750$. Three years later, on February 3rd 2015, Christophe sells the building including the apartment where Dominique lives to Roland, a successful businessman. However, Christophe didn’t notify Dominique of this sale. By that very fact, she is not aware that Roland is now her landlord and that it is to him she now has to pay her monthly rent. Thus, from February 1st 2015 and August 1st 2015, Dominique continues to mail a monthly check of 750$ to Christopher. On August 15 2015, Dominique learns that Christophe is no longer her landlord in an extrajudicial demand she receives by mail and sent by Roland, requiring her to pay him the unpaid rent from February 1st 2015 to August 1st 2015. Dominique, surprised to learn this, is distraught and does not want to pay Roland since she has already paid the amount due to Christophe.

FAQ

Does Dominique have to pay the unpaid sum of money to Roland?

Dominique, as a lessee, was persuaded Christophe was still her landlord and that it was to him that she had to pay rent. By that very fact, she paid the apparent creditor. Dominique, by doing so, is presumed to have paid her rent in good faith, which means she paid it to the person she honestly thought she had to without any bad intention. In this case, nothing could’ve indicated to Dominique that Christophe wasn’t her landlord anymore: as a matter of fact, he didn’t even notify her of the building’s sale and received the monthly rent Dominique kept on paying him without letting her know she didn’t have to pay him anymore. Since the payment of the rent was made in good faith by Dominique and considering that she acted like a prudent and reasonable person would have in the same circumstances, the payment is considered valid and Dominique doesn’t owe anything to Roland. 

How could Roland successfully claim the money to Dominique?

Roland would have to successfully demonstrate Dominique hasn’t made the payment to Christopher in good faith. In other worlds, Roland would have to prove, for example, that while Dominique was fully aware that Christopher was no longer her landlord, she still paid him rent. However, considering the circumstances of this case, Dominique did not act in bad faith and Roland cannot claim her the unpaid rent. 

Can Roland claim the unpaid sum to Christophe?

Yes. Since Dominique made the payment in good faith to Christophe and that it is rather Christophe who failed to notify Dominique of the building’s sale to allow her to pay the real landlord, Dominique owes nothing to Roland. However, Roland is nevertheless entitled to claim the amount due to him to Christophe, especially as it’s because of his negligence that he didn’t receive payment of the rent. Roland could pursue Christophe to force him to pay him the amount due. 

I like my dwelling, but my landlord won’t execute one of his obligations. What can I do about it?

Sebastian Fernandez, 23 June 2015

Amanda is a young French woman who moved to the Canadian province of Quebec. Seduced by Montreal because of the good things she heard about this city, she wishes to live there. She found an apartment to rent in a building owned by Samuel. These two individuals meet in June 2015 and immediately agree to sign a lease binding both parties for a period of 5 years to the monthly rent of 900$. Furthermore, the lease contains a clause in which Samuel pledges to repair the refrigerator at his own expense within two months of signing the lease. Even though the refrigerator is broken, Amanda likes the apartment and accepts this agreements.

Four months after signing the lease, Samuel still hasn’t proceeded to the reparations he pledged to do. Although she really likes the apartment she rented, Amanda has had enough. She sends to Samuel an extrajudicial demand by mail in which she asks him to repair the refrigerator within two weeks of receipt of the notice. Two weeks after receiving the demand, Samuel still hasn’t hired a professional to repair the refrigerator.

FAQ

In these circumstances, which legal recourse seems the most appropriate for Amanda to use?

Amanda, as a lessee, has the right to demand that the obligations her landlord pledged to perform be performed in full, properly and without delay. When the landlord fails to perform these obligations without justification on his part, she can force specific performance of these obligations. In these circumstances, the forced specific performance of the obligation seems the most appropriate legal recourse since Amanda wishes to stay in the apartment she rented and only wants Samuel to perform his obligation to repair the refrigerator. However, if Amanda wants to force specific performance of the obligation, Samuel first has to be in default. In this case, Samuel is in default since Amanda sent him an extrajudicial demand in which she asks him to perform his obligation within a reasonable delay and did not perform his obligation within this delay. 

Can Amanda perform Samuel’s obligation or have it performed at his expense?

Yes. Since Samuel fails to perform his obligation, Amanda can have the obligation performed at his expense. However, to do this, Samuel has to be in default, which is the case here. In addition, to exercise her right to perform Samuel’s obligation at his expense, Amanda must notify Samuel she’ll do so in her extrajudicial demand. The only cases where a lessee doesn’t have to notify its landlord is when he’s in default by the sole operation of law or by the terms of the lease itself. In this case, to perform Samuel’s obligation at his expense by, for instance, hiring a professional to do so, Amanda would have to send another extrajudicial demand to Samuel in which she’d notify him that if he doesn’t perform his obligation in a reasonable delay, she’ll perform it at his expense. 

Is it always possible to force specific performance of an obligation?

No. It always depends on the nature of the act subject to the obligation. For instance, if that act is to pay an amount of money that is owed, then yes, the forced specific performance is always possible since such an act can be executed by anyone. However, if the act is personal in a way that only one specific person can accomplish it, then the forced specific performance of an obligation may not be possible, in which case the performance of the obligation by equivalence will be possible. That would be the case, for example, if a famous singer such as Celine Dion would cancel her show after the tickets have been sold. In such a case, it wouldn’t be possible to force the artist to sing, the only possible remedy being the reimbursement of the purchased tickets. In this case, repairing a refrigerator at the person who fails to perform this obligation’s expense is an act that can be executed by any professional specialized in such repairs. By that very fact, forced specific performance of the obligation is possible in this case. 

Moving without bedbugs

L'appart.info, 19 June 2015

MONTRÉAL, June 19, 2015 – Moving time is almost upon us and with it the possibility of an increase in bedbug infestations. The city would like to point out a few prevention tips and remind those who will be moving to leave their old apartments free of harmful insects and to avoid moving them to a new dwelling unit.

Acting quickly is the best solution
If you discover bedbugs in your apartment, immediately notify your landlord, who will need to call a certified exterminator. If the landlord does not act after a ten-day period, call 311 to notify your borough of the infestation problem. The borough could require action on the part of the landlord within a prescribed period under penalty of a fine.

Never try to get rid of bedbugs by yourself. The use of insecticides may be ineffective and are often toxic. These products could cause the bedbugs to spread to your neighbours’ dwellings or increase their resistance to extermination products.

Infested mattresses or furniture
Most bedbug-infested mattresses and upholstered furniture can be treated. Before getting rid of such items, ask a certified exterminator for advice.

If they cannot be treated and the exterminator tells you to get rid of them, make them unusable by slashing the fabric with a knife or an X-Acto. This way, people will not be tempted to bring the items home and they will avoid infesting their dwellings.

After slashing the fabric of your mattress, enclose it in an extra-large plastic bag before taking it out of your dwelling. This will prevent bedbugs from dropping from your mattress and infesting common areas as well as your neighbours’ apartments. Extra-large plastic bags are available for free at most Accès Montréal offices.

Never pick up mattresses, upholstered furniture, sofas, chairs, sofa-beds, futons or used clothing from the curb, even if they appear to be in good condition. They could be infested with bedbugs.

For more information on bedbugs, how to avoid or control infestations, please visit the Web at: avoidbedbugs.info. You will also find useful prevention tips for travellers.

 

SOURCE Ville de Montréal

Can my landlord refuse a candidate to sublease for any reason?

Sebastian Fernandez, 12 June 2015

Noémie lives in an apartment in Montreal owned by Nicolas. These two individuals signed a lease in June 2014 binding both parties for a period of 5 years to the monthly rent of 800$. Noémie, as a student at McGill University, applied for a student exchange in China. When she learned that she was selected for the exchange, she was thrilled. However, this trip to China involves she’ll have to sublease her apartment for four months. After meeting with several potential candidates, she retains Aina’s request, a young Asian girl who also studies at McGill University and has a stable job.

As soon as Aina agrees to be the subtenant for a period of four months, Noémie gives Nicolas notice of her intention to sublease as well as Aina’s name and address. However, Nicolas refuses, claiming in a letter to Noémie that he does not wish that Asians live in his building.

Noémie announces the news to Aina with regret and shows her the letter. Aina is deeply saddened by the letter and becomes depressed. This depression makes her unfit to work for a month.

FAQ

Did Noémie respect the necessary prerequisites to the sublease of a leased property?

Yes. In fact, a lessee wishing to sublease all or part of a leased property is bound to give the owner notice of his intention and the name and address of the intended sublessee and to obtain the landlord’s consent to the sublease. However, it is important to understand that a landlord cannot refuse to consent to the sublease of a leased property without a serious reason. Refusing to consent to the sublease of a leased property because the intended sublessee is Asian is not a serious reason. As a matter of fact, it is even a discriminatory reason. 

Does Aina have one or more legal recourses* against Nicolas?

Yes. Since Nicolas refused Aina as a sublessee because she is Asian, he violated her right to equal recognition guaranteed by the Charter of Human Rights and Freedoms by discriminating her on the basis of her ethnic origin.

Firstly, since there is an unlawful and intentional interference to a right guaranteed by the Charter of Human Rights and Freedoms, the right to equal recognition in this case, Aina could ask a tribunal to condemn Nicolas to pay her punitive damages. When a person asks for punitive damages, she does not have to prove a prejudice, but only the existence of an unlawful interference to a right guaranteed by the Charter of Human Rights and Freedoms as well as the intentionality of this interference.

In addition, Aina could also claim compensatory damages to obtain compensation for the prejudice resulting from the unlawful interference to her right to equal recognition granted by the Charter of Human Rights and Freedoms. However, to obtain these damages, Aina has to prove a prejudice she suffered. In this case, Aina suffered pecuniary losses from a moral prejudice, more precisely by losing a month of salary because of her depression triggered by reading the letter discriminating her.

In both cases, Aina could prove the interference to her right to equal recognition with the letter Nicolas sent to Noémie, as well as the intentionality of this interference that has to be proven to obtain punitive damages.

*IMPORTANT: The legal recourses Aina can exercise in these circumstances would also be available for any lessee, and not only sublessees. 

Your moving ? Did you think about changing your address ?

L'appart.info, 8 June 2015

Moving is not only making boxes, you have to change your address. The service québécois de changement d’adresse offers you the chance to send your new address to the participating departments and agencies below in one operation.

Check the information list before getting started.

Directeur général des élections du Québec (DGEQ)

  • You are Canadian citizen
  • Date of birth
  • Sex

Ministère du Travail, de l'Emploi et de la Solidarité sociale (MTESS)

  • Social insurance number
  • MTESS file number
  • File number (vocational qualification)
  • Date of birth
  • Sex

Régie de l'assurance maladie du Québec (RAMQ)

  • Social insurance number (mandatory for anyone 18 or over)
  • Health insurance number
  • Date of birth
  • Sex
  • Your mother’s family name at birth
  • Your mother’s given name

Régie des rentes du Québec (RRQ)

  • Social insurance number
  • Date of birth
  • Sex
  • Your mother’s family name at birth

Revenu Québec (RQ)

  • Social insurance number
  • Date of birth
  • Amount on line 199 of your income tax return for the last taxation year for which you received a notice of assessment

Société de l'assurance automobile du Québec (SAAQ)

  • Driver’s licence number
  • Driver’s licence reference number
  • Claim number (accident victims)
  • Date of birth
 

Nevertheless, some exceptions are applied. Make sure to fufill all the obligations before applying. Click here to apply and for more informations.

The Ville de Montréal invites households who will be without a home as of July 1 to call 514 868-4002 for assistance

L'appart.info,

Here is a presse release from the Ville de Montréal.

Montréal, le 8 juin 2015 – The moving period is approaching and Russell Copeman, member of the Montréal Executive Committee, responsible for housing, announced that the city is, again this year, implementing measures to help low-income households who will be without a home as of July 1. Montrealers who have reason to believe that they will be without a home as of July 1 may call starting today the referral service help line at 514-868-4002 for assistance in finding housing.

“Although the July-1 period emergency situation is less severe than in the early 2000s, we understand that families who find themselves without a home can go through hardships. The referral service will step up efforts between June 8 and July 3 to help households find a home. Large affordable housing units are scarce, and this service is aimed especially at low-income households who will be without a home this moving period. We urge them to call the help line for assistance,” said Mr. Copeman.

In 2014, between mid-June and mid-July, 26 households received assistance from the city and its partners, 8 more than for the same period in 2013. The city administration works closely with the Office municipal d’habitation de Montréal and with community and humanitarian organizations, including Sun Youth, to provide temporary lodging to households without a home and to make sure that no one is left out on the street on July 1.

Although the situation has improved significantly, it is still difficult for vulnerable Montréal households to find large, low-rent housing in the city. Montréal continues to promote the development of affordable housing, including social and community units. Since 2002, close to 16,000 housing units of this type were developed in Montréal. Approximately 6,100 of those units are family-housing units, including a significant number of large units, 2,500 of which with three bedrooms or more. Projects that include hundreds of housing units are in planning.

See the original post.

As a lessee, how can I put my owner in default to perform one of his obligations?

Sebastian Fernandez, 5 June 2015

Julien is a father of two children. He lives in an apartment since 2 years situated in Quebec City. In the lease, Philippe, the landlord, pledged to repair the broken plumbing. However, two years after signing the lease, Philippe still hasn’t performed this reparation and Julien has had enough. One night, he meets Philipp to discuss this matter. Philippe clearly tells him he will not perform the reparations. Julien absolutely wants the reparations to be done and isn’t going to stop there. Four days later, he meets Marcel, a friend of his who is a lawyer. Marcel advises Julien to force Philippe to perform his obligation, which will however require Philippe to be in default.

FAQ

In these circumstances, does Julien have to put Philippe in default?

No, Julien doesn’t have to put Philippe in default since by the sole operation of law. In Quebec law, there are some situations, if they occur, that will automatically put in default the party failing to perform one of his obligations. Here are all of these situations provided by law, more precisely by the Civil Code of Quebec:

  • The performance of the obligation would have been useful only within a certain time which he allowed to expire;
  • The party having to perform an obligation failed to perform it immediately despite the urgency that he do so;
  • One of the parties to a contract violated an obligation not to do (an obligation not to compete, for instance);
  • The party to a contract, through his fault, made the specific performance of an obligation impossible;
  • The party to a contract has made clear to his creditor his intention not to perform the obligation or has repeatedly refused or neglected to perform it.

In this case, Philippe has made clear to Julien his intention not to perform one of the obligations he pledged to perform in the lease. By that very fact, Philippe is automatically in default, by the sole operation of law. However, if the case ends up in court, Julien will have to prove that refusal. In other words, he’ll have to prove he is in one of the situations provided by the Civil Code of Quebec which ensures that the party failing to perform his obligation is automatically in default. 

If Philippe had not made clear to Julien his intention not to perform the obligation he pledged to perform in the lease, how could Julien have put Philippe in default?

Contrary to popular belief, there is more than one way to put a party to a contract in default to perform his obligation.

The best known of these ways is the submission of an extrajudicial demand, which is a written document prepared by a lawyer or by the person who sent it. This document, which requires the defaulting party to perform its obligation, must allow reasonable delay for that party to perform it, and it’s only when that delay expires that the party receiving the extrajudicial demand shall officially be in default. If no delay is specified in the notice, it is not invalid. Indeed, if the case is found before a court, a judge may decide that despite absence of delay prescribed in the document, the person who received nonetheless had a reasonable delay to perform his obligation.

In addition, it is also possible, before signing the lease, to negotiate with the other party to include a clause that would match the performance of an obligation at a given time. If the party required to perform this obligation fails to within that period, it will be in default, without the need to send an extrajudicial demand.

Finally, it is also possible to put the other party in default by judicial demand without his otherwise being in default. Upon filing the demand, however, the person failing to perform his obligation has a reasonable delay to perform his obligation. Once the delay expires, the person is officially in default.

What are the advantages of putting a party to a contract in default?

Any party to a contract, including a lease, has the right to demand that the obligation by performed in full, properly and without delay. When the other party fails to perform one of its obligations when it has to, some remedies are available, including the forced specific performance of the obligation or the termination of the lease. However, to have access to these remedies, the party failing to perform an obligation has to be in default. Thus, a formal notice is important since it provides access to these remedies. Considering that, it is to Julien’s advantage for Philippe, the owner and other party to the lease, to be in default so he can force specific performance of the obligation to perform the reparations Philippe pledged to perform or obtain the termination of the lease and find another apartment.

Moreover, in addition to these remedies, Julien could claim damages if he has suffered prejudice due to Philippe’s failure to perform his obligation. However, to bring an action for damages, Philippe must be in default, illustrating another advantage of the formal notice.

As a lessee, can I omit to pay my rent when the owner fails to perform one of contractual obligations?

Sebastian Fernandez, 31 May 2015

Joanne is a student from Sherbrooke. Admitted to the University of Quebec in Montreal (UQAM) in March 2015, she wishes to find accommodation in Montreal and find a job there to support herself. She decides to rent an accommodation in Ahuntsic from Michael, landlord of a building in this section of the city. Both parties sign a 2-year lease biding them to the monthly rent of 750$ starting August 1st 2015. However, even if the apartment requires some renovations, that did not bother Joanne since Michael engaged in the lease to make these renovations either in August or September 2015.

On August 1st, Joanne moved into the apartment. As of November 14 2015, Michael has not done the renovations he has engaged to perform at his expenses while Joanne has always paid her rent the first of the month. Joanne, frustrated by this situation, decides to send to Michael on November 17 2015 a demand letter by registered mail requiring him to carry out the renovations he has committed to do during the next month. Michael, who receives the letter the next day, still did not carry out the renovations a month later, on December 18 2015.

Joanne is extremely disappointed by Michael’s behavior, but enjoys the apartment in which she resides. She plans to omit paying the rent on January 1st 2016 to pressure Michael into respecting his contractual engagement.

In addition, Joanne, who found herself a job at a car dealer, sold a car to Michael on November 17 2015. Michael paid the car in a single payment at this date, but both parties agreed in the sales contract the car would be delivered at Michael’s domicile January 20 2016.

FAQ

Can Joanne omit to pay her rent since Michael did not perform one of his obligations?

The non-payment of rent Joanne is considering to pressure the owner into performing one of his obligations is an extrajudicial recourse known as exception for non-performance. It consists in the non-performance of a contractual obligation on a temporary basis, such as paying the rent for instance, when the other party to the contract does not perform one of his obligations. However, to have the temporary right to not perform an obligation, certain conditions must be met.

Firstly, the party omitting to execute his obligation must be in default. In this case, Michael is in default since Joanne sent him an extrajudicial demand and he did not respect the reasonable delay mentioned in this demand within which he had to perform his obligation.

Secondly, the party wanting to execute its right to exception for non-performance, Joanne in this case, has to be of good faith. In this case, Joanne always paid her monthly rent and did not contribute to Michael’s omission to accomplish the renovations. In other words, she is not the source of her own misfortune.

However, the obligation that will be subject to exception for non-performance, so that will not be executed temporarily, has to be unperformed to an extent equal to the failure of execution from the other party. In this case, Michael performs his obligation to provide accommodation to Joanne and its peaceful enjoyment as he has to, but fails to perform his obligation to accomplish the renovations. Nevertheless, the non-payment of the rent to pressure Michael would be disproportionate to Michael’s contractual failure to renovate. And so, Joanne cannot omit to pay the entire monthly rent until Michael does the renovations, but could, for instance, omit to pay the quarter or third of it. 

Since Michael does not perform one of his contractual obligations mentioned in the lease, can Joanne omit to deliver the car she has to deliver to him?

In addition to the conditions that were mentioned earlier that are required to exercise the right to exception for non-performance, the obligation that is subject to exception for non-performance has to be in correlation with the obligation that is failed to being executed by the other party. However, in this case, delivering the car is inherent to the contractual sales report linking Joanne and Michael and has nothing to do with the lease contract linking both parties. Since Michael paid his car in a single payment, Joanne has to deliver him and the deliverance of the car cannot be subject to exception for non-performance in motif that Michael omitted to renovate. 

If Michael still does not perform renovations despite the exception for non-performance, does Joanne have other legal recourses?

The exception for non-performance is a form of extrajudicial remedy that constitutes a way to apply pressure on a party to a contract failing to execute one or more of his obligations. But what if the other party still fails to perform his obligation despite the exercise of the right to exception for non-performance? In this case, considering that a party to a contract has the right to except and demand that the obligation be performed in full, properly and without delay, it can always resort to force specific performance of the obligation or obtain the resolution or termination of the contract. However, to resort to these options, the party failing to perform has to be in default, which is Michael’s case here. 

Can a landlord ask a tenant ‘s portion of the rent that he has not paid ?

Sebastian Fernandez, 21 May 2015

Carl and Martin are two longtime friends from Trois-Rivières. Admitted at the University of Montreal in April 2014, they wish rent accomodation in the city for fall 2014 and winter 2015. The two friends signed a lease with Rodrigue, landlord of a building located in the hearth of the city, binding the parties from August 2014 to May 2015 at the monthly rent of 800$.

However, since January 2015, Martin has serious financial difficulties and is no longer able to pay his share of the rent. Until April 2015, Rodrigue is patient and does not claim Martin’s share of the rent. However, in May 2015, he has had enough and wants to recover the unpaid amount by Martin during the last five months, which totals 2 000$. Knowing that Martin is in financial difficulty while Carl is not, he decides to reclaim this sum to Carl, who claims that he is not required to pay Martin’s part.

FAQ

Can Rodrigue claim the full amount due to Carl ?

Rodrigue cannot claim to Carl the amount Martin owes him since the lease they signed does not include a provision of passive joint and several liability. In a residential lease, such a provision has the effect of making the tenants’ obligations solidary, including that to pay the monthly rent. If there was such a clause in the lease, Carl and Martin could’ve been compelled separately to pay all of the rent due. However, since there is no provision of passive joint and several liability in the lease, Rodrigue cannot claim to Carl the part of the rent Martin owes him. 

Is it possible that tenants may be subject to joint and several liability without any provision of passive joint and several liability?

This is not possible when it comes to a residential lease. However, the solidarity between tenants is presumed when an obligation is contracted for the service or carrying on of an enterprise. By that very fact, in these circumstances, it is unnecessary to include a provision of passive joint and several liability in the lease. If, for instance, Carl and Martin would’ve signed a lease to operate a business, the owner could’ve been able to claim the totality of the rent due to Martin or Carl even in the absence of a provision of passive joint and several liability in the lease.

If tenants are subject to a provision of passive joint and several liability and the owner claims the totality of the rent due to one of them, can the tenant to whom is reclaimed the sum claim the portion of the rent due he has to pay but that is owed by the tenant that is not paying?

Yes. If, for instance, there was a provision of passive joint and several liability in the lease signed by Carl and Martin, Carl would’ve been required to by the totality of the rent due to Rodrigue. However, once Carl would’ve paid, he would have been subrogated to Rodrigue’s rights. By that very fact, instead of owing 2000$ to Rodrigue, Martin would’ve owed 2000$ to Carl by operation of law.

How can we know if there is a provision of passive joint and several liability in a lease?

Just read the contract. Generally, such provision will take the form of a sentence including words like “solidarity” or “solidary”. Here is an example of a passive solidarity clause: “The undersigned acknowledge having severally to perform their obligations to Rodrigue.” 

If the person living in a rented accommodation did not sign the lease, can the owner claim from his the full rent due?

No. Only a lease signatory can be subject to provisions in a lease. If, for instance, Carl was an occupier rather a roommate, so if he had not signed the lease, Rodrigue could not have claimed the rent unpaid by Martin.

Can you leave a dwelling unfit for habitation and obtain a retroactive rent reduction ?

Sebastian Fernandez, 17 May 2015

Marion is a single mother of a two-year old girl. Eager to live in Montreal, she signs a residential lease with a fixed term with Jonathan, owner of a building. The lease binds the parties for eight months, from November 1st 2014 to June 30 2015, at the monthly rent of 1 200$. On November 20 2014, Marion’s daughter began experiencing breathing problems. On May 14 2015, she has to go to the hospital, where medical pathologists determined that Marion daughter’s health problems are inherent to poisoning in the air. On May 21th 2015, professionals hired by Marion proceed to the inspection of her housing and determine that the ventilation is contaminated by the presence of mold. They tell Marion this represents a serious health hazard and that her and her daughter should leave in the briefest delays.

That same day, Marion follows their advice and leaves the dwelling without notifying her landlord, but tells the building caretaker June 2nd 2015. Three weeks later, June 23 2015, Marion’s lawyer sends an extrajudicial demand to Jonathan to put him in default. Four days later, Marion files before the Régie du logement’s court a lease termination request motivated by the fact that the dwelling is unfit for habitation. In addition, she sues Jonathan, seeking legal damages for totalising the amount of 9 600$ for the rent paid to Jonathan from the moment they’ve signed the lease until May 2015.

FAQ

Could Marion leave the dwelling only because it was unfit for habitation? If she can, is she exempted from paying the rent she had to pay for the period during which the dwelling was unfit for habitation?

Marion decided to leave the dwelling because she found out it was unfit for habitation. In Quebec, a tenant may abandon a dwelling if it becomes unfit for habitation, but is bound to inform the owner of the dwelling’s condition before abandoning it or within the following ten days, and the lessee who gives such a notice is exempt from paying the rent for the period during which the dwelling was unfit for habitation, unless the condition of the dwelling is the result of its own fault. However, Marion omitted to give such a notice within the time required by law, and the fact that she told the building caretaker she left the dwelling because it is unfit for habitation is not a valid notice since it’s not directly addressed to the owner. 

Can Marion obtain a retroactive rent reduction?

Generally, contract termination engenders its annihilation for the future, without retroactive effects. Nevertheless, it is possible, in a judicial context, for a judge to decide for the contract to be terminated at a date prior to the one of the judgment and impose a restitution which can take the form of a retroactive rent reduction if the tenant proves that he has suffered damage related to the cause of the termination of the contract since before the time of termination. However, for the tenant to obtain the termination and, if possible, receive a retroactive rent reduction, the owner must be in default, and it is the moment since when the owner is in default which marks the starting point for the granting of a retroactive rent reduction. In this case, Jonathan, the owner, was not put in default before June 23 2015. Consequently, Marion cannot obtain a retroactive rent reduction for the period prior to the reception of the extrajudicial demand she sent to Jonathan by him, which putted him in default.  

Villeray, a neighborhood in which to live !

L'appart.info, 14 May 2015

Villeray is a neighborhood where several major arteries converge in Montreal. Access is easy both by public transport and by car. This “eco-district” radiates through local assistance between residents and traders. This expanding area is seen to be rejuvenated by the arrival of younger families. Visit the Jarry Park and enjoy the green spaces!

If you decide to adopt this neighbourhood, the “Maison de Quartier Villeray” might interest you. This charity helps improve the living conditions of the population. The organization offers services such as community gardens, collective cooking classes, economic groceries and more. It is in a spirit of mutual aid and solidarity that the «Maison de Quartier Villeray» aims to develop the community.

For more information on visit the «Maison de Quartier Villeray ».

Want to discover gastronomic, cultural destinations and more visit le Voir Montreal.

Likehome now online!

L'appart.info, 4 March 2015

Likehome.info is now live, launched at the occasion of Concordia’s Housing Fair. This site was developed for all the students of Montreal, and we hope they will find all the information they could use here. By the way, if you are studying elsewhere in Quebec you will likely find a lot of the information to be of some use – everything but the map, likely!

This project was born out of UTILE’s 2014 survey to McGill, Concordia and UQAM students, which showed that students very often pay more on average than the rest of the population for their rent. This is especially true in some neighborhoods and for certain groups – out-of-province students, mainly.

Through discussions with CSU’s HOJO team, UTILE learned that simply giving better access to relevant and clear information on student housing could solve a lot of students’ housing problems. The two organizations collaborated to produce Likehome.info, a central platform that gives access to existing ressources.

Did you spot something wrong on the site? Would you like to help us developing or promoting it? Feel free to get in touch!

UTILE and HOJO