The unsanitary condition of a dwelling refers to situations that may cause the dwelling to be in poor habitable condition or unfit for habitation. For example, it may be the presence of mould or fungus, vermin (e.g., cockroaches, bedbugs or ants), rodents (e.g., rats or mice), excessive humidity or contaminated air.
A dwelling unfit for habitation is in such a condition as to be a serious danger to the health or safety of its occupants or the public.
A dwelling in poor habitable condition is not automatically considered unfit for habitation.
Recourse of the lessee with the Régie du logement
As regards unsanitary conditions, a lessee may make an application to resiliate the lease or to obtain an order obligating the lessor to carry out work where its non-performance threatens to make the dwelling unfit for habitation or when the dwelling has become unfit.
A lessee may also make an application to decrease the rent or to obtain damages.
Recourse of the lessor with the Régie du logement
A lessor may make an application to resiliate the lease or to obtain an order (specific performance) to make the dwelling fit for habitation if its condition is the result of the lessee’s fault.
The burden is on the applicant to demonstrate that the dwelling is unfit for habitation. That evidence can be provided, among others, by filing photos.
When the tribunal is seized of a proceeding regarding an unfit dwelling, it takes into account the extent of the unsanitary conditions when rendering an order or resiliating a lease.
Abandonment of the dwelling
A lessee may abandon a dwelling that has become unfit for habitation. In such a case, the lessee must notify the lessor of the condition of the dwelling before abandoning it or within the following 10 days. Before leaving the dwelling, the lessee must be reasonably certain that the lessor will not resolve the problem quickly.
If the lessee has notified the lessor, the lease is not resiliated, but the lessee is exempt from rent for the period during which the dwelling is unfit for habitation. Obviously, the condition of the dwelling must not be the result of the lessee’s own fault.
If the lessee fails to notify the lessor, the lessee must continue to pay the rent. The lessee is also responsible for damages resulting from a failure to notify the lessor. In the case of the lessee’s failure to notify the lessor, the latter may exercise recourse for damages or ask for the resiliation of the lease without other grounds.
The lessor must make the dwelling fit for habitation. The lessor may ask for the resiliation of the lease, but the tribunal can order the lessor to make the dwelling fit for habitation. The lessor cannot rent the dwelling again until it is made fit for habitation.
As soon as dwelling becomes fit for habitation again, the lessor must inform the lessee if the lessee has given him his new address; the lessee must then notify the lessor within the following ten days as to whether or not he intends to return to the dwelling.
Where the lessee has not given his new address or fails to notify him that he intends to return to the dwelling, the lease is cancelled of right and the lessor may enter into a lease with a new lessee.
Order to carry out work
When the Régie du logement issues an order to carry out work, a defendant who refuses to comply can be found in contempt of the tribunal. The proceeding for contempt of court is filed with the Superior Court by the beneficiary of the decision who must institute the proceeding. Note that if the offender is found guilty of contempt of court, the minimum fine is $5000.
When the Régie du logement has declared a dwelling unfit for habitation, the lessor cannot rent the dwelling affected by the situation.
If a lessor were to rent a dwelling again after a finding of the tribunal, the lessor would be liable to a fine.
If the health and safety of a lessee are threatened, the Superior Court may impose a fine of $5000 to $25 000 (depending on whether it is a natural or legal person) on the lessor.
Dwelling unfit for habitation when delivered
A lessee may refuse to take possession of a dwelling if he or she notes that it is unfit for habitation. The lease is then resiliated by operation of law. In such a case, the lessee can possibly take action for damages.
The Régie du logement’s jurisdiction as regards unsanitary conditions is shared with municipalities and the Superior Court.
Municipalities can lodge a complaint in Municipal court to impose fines on offenders and refer the matter to the Superior Court to obtain an order.
The Superior Court may:
- compel the lessor to resolve the problem;
- enable the municipality to do so at the lessor’s expense;
- order the evacuation and even the demolition of the building.
Certain cities of Québec have regulations on the sanitary condition of dwellings, in particular Montréal, Québec and Gatineau.
In Montréal, the By-law concerning the sanitation and maintenance and safety of dwelling units has been in effect since June 26, 2003. It applies to all buildings serving or intended to serve for residential purposes, as well as outbuildings. In addition to any other recourse under the law, a borough of the Ville de Montréal may, in the case of default by the lessor of a building:
- take any action or have any action taken under the by-law, at the lessor’s expense, in connection with the building;
- deal with the unsanitary conditions referred to in the regulation, at the lessor’s expense;
- issue a notice ordering the evacuation and the closing of a building or a dwelling unit that is not in accordance with the by-law.