Introduction: repossession of housing
In Quebec, tenants have the right to remain in the premises. However, there are exceptions to this right. Housing repossession is one of these exceptions. It refers to the termination of the lease by the landlord, so that he or a member of his entourage can live in the dwelling in question. The repossession of housing must be differentiated from eviction, which will not be dealt with in this article.
Housing repossession: who is eligible?
According to the Civil Code of Québec[1], the landlord of a dwelling, when he or she owns it, may take over the dwelling to house the following persons:
- Himself;
- His ascendants or descendants in the first degree, i.e. his mother, father or children;
- Any other relative or relative for whom he or she is the primary supporter;
- The term “ally” refers to a step-parent. This definition excludes a common-law relationship.
- A spouse for whom he or she is the main support after legal separation, divorce or dissolution of a civil union;
The landlord cannot repossess the unit if the tenant or their spouse meets the following criteria[2] :
- They are 65 years of age or older;
- They have been living in the home for at least 10 years;
- The annual income is equal to or less than 125% of the maximum income that allows him or her to qualify for low-rent housing according to the Regulation respecting the allocation of low-rent housing.
- The Société d’habitation du Québec publishes on its website the maximum income thresholds that allow a tenant to qualify for low-rent housing.
If the tenant or their spouse meets the above criteria, then the repossession will only be granted in the following situations:
- The landlord, who wishes to take over the dwelling to live there, is 65 years of age or older;
- The beneficiary of the takeover is aged 65 and over;
- He is an owner-occupier aged 65 or over and wishes to house a beneficiary under the age of 65 in the same building as him.
The process of repossession of a home
A landlord who wants to repossess the unit must give the tenant advance notice in writing. Here are the deadlines to be respected:
- For a fixed-term lease, at least six months before the end of the lease;
- For example, if a lease begins on July 1 and ends on June 30 of each year, then the notice of repossession must be sent before January 1.
- For a fixed-term lease of six months or less, the period is one month.
- For example, if a lease begins on December 1 and ends on June 30, then the notice of repossession must be sent before June 1.
- For an open-ended lease, i.e. a lease without an agreed end date, the notice must be given six months before the planned date of the takeover.
The notice of repossession[3] must indicate the date on which it is expected to take place, the name of the beneficiary and, if applicable, the degree of kinship or relationship of the beneficiary to the landlord. It must also reproduce the content of article 1959.1 of the Civil Code of Québec. Templates are available on the Tribunal administratif du logement website.
By law[4], a tenant who does not respond to the landlord’s notice of repossession within one month of receiving the notice is deemed to have refused to leave. The landlord then has a period of one month to submit his application for forced repossession to the Tribunal administratif du logement.
Allowance for moving expenses
Although it is common practice, the allowance for moving expenses is not mandatory for repossession of a home.
However, the Tribunal administratif du logement, when it is seized of a forced repossession file, may decide to award an allowance for moving expenses. The amount is at the discretion of the court. It will vary according to the actual costs incurred to move, the age of the tenant, his state of health, etc.
Good faith during the takeover
According to the law, a repossession of a dwelling can only be done with the aim of housing the owner, one of the descendants or ascendants in the first degree or a relative for whom he or she is the main supporter.
The repossession of a dwelling cannot be a pretext for evicting a tenant. The repossession project must be serious and credible to be accepted by the court.
A dwelling that has been repossessed can only be put back on the rental market with the permission of the court[5]. Otherwise, the repossession of the dwelling will be considered to have been made in bad faith.
What happens in the event of an illegal takeover?
A tenant who believes he or she has been the victim of an illegal repossession may apply to the Tribunal administratif du logement for compensation[6]. In particular, the landlord will have to show that the landlord acted in bad faith. A major event beyond the landlord’s control may, in certain circumstances, clear the landlord of not having repossessed the unit.
An illegal repossession of a dwelling opens the door to several heads of damage for the aggrieved tenant, namely:
- Damages resulting from the takeover;
- Punitive damages;
Damages resulting from the repossession refer to the prejudices that the tenants will directly experience because of the repossession: monetary losses, material damage, moral damages such as the stress experienced, etc.
These damages are based on losses that must be demonstrated by factual evidence (e.g., invoice for the replacement of a piece of furniture) in the case of a pecuniary or material loss.
Damages may include compensation equivalent to the difference, for a period of 12 to 24 months, between the tenant’s former rent and the rent of the dwelling to which he or she had to relocate.
In addition, the offending owners can also be ordered to pay punitive damages, i.e. additional damages to deter behaviour deemed unacceptable. The amounts of the tenant’s damages will vary depending on the circumstances of the situation in dispute: the length of the lease, the landlord’s ability to pay, the degree of the infringement of the tenants’ rights, the difficulty of relocating, etc.
Conclusion
When it comes to repossession of a dwelling, the landlord’s right of ownership and the tenant’s right to remain in the premises often collide. It is important to scrupulously follow the provisions of the law and to know your rights to limit conflicts.
Are you a landlord or tenant looking for advice on the repossession of your home? Do not hesitate to contact our housing lawyers who will be able to advise and support you in the event of a dispute.
Release — The purpose of this article is to inform and raise public awareness of legal issues. The legal information in this article is provided for informational purposes only and is likely to vary significantly over time and according to the precise facts of each situation. The reading of this article does not create an attorney-client relationship. This article is not a substitute for a lawyer’s legal opinion and does not engage the liability of Boavista Legal Services Inc., its lawyers, articling students, employees, successors, assigns and subcontractors.
[1] Art. 1957 C.c.Q.
[2] Art. 1959.1 C.c.Q.
[3] Art. 1961 C.c.Q.
[4] Art. 1962 C.c.Q.
[5] Art. 1970 C.c.Q.
[6] Art. 1968 C.c.Q.
