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In a recent Quebec case, a tenant was ordered to allow her landlord access to her apartment, subject to COVID-19 health and safety directions.

What Happened?

The tenant lives in a four-and-a-half room apartment located in the basement of a building, which is owned by the landlord. The landlord and tenant had entered into a lease, which had been renewed until June 30, 2020. The monthly rent was $510.

The landlord had been attempting to sell the building, which required that he show potential purchasers the inside of the building and its apartments.

However, the landlord claimed that, since June 2019, the tenant had systematically refused to give him access to the building despite the 24-hour advance notices he had given her, as required by law.

More recently, a potential purchaser wanted to conduct a pre-purchase inspection of the building. The landlord claimed that the tenant’s refusal to allow access could result in the loss of the sale.

To this effect, the landlord sent a demand letter to the tenant in March 2020.

However, due to the circumstances surrounding the COVID-19 pandemic, the tenant’s reluctance to provide access to the unit was even more resolute. 

The landlord therefore filed an application with Quebec’s Régie du logement requesting the issuance of an access order against the tenant. The landlord sought an order that the tenant give him access to the dwelling to verify the state of the premises and that he might show it to potential purchasers. He also sought damages for harm suffered.

Issue

At issue was whether the landlord was justified in requesting access to the tenant’s apartment.

Decision

The tribunal began by setting out the relevant provisions of the Civil Code of Québec that deal with access to housing:

1931. The lessor is bound, except in case of emergency, to give the lessee a prior notice of 24 hours of his intention to ascertain the condition of the dwelling, to carry out work in the dwelling or to have it visited by a prospective acquirer.

1932. The lessee may, except in case of emergency, refuse to allow the dwelling to be visited by a prospective lessee or acquirer before 9 a.m. or after 9 p.m.; the same rule applies where the lessor wishes to ascertain the condition of the dwelling.

The lessee may, in all cases, refuse to allow the dwelling to be visited if the lessor is unable to be present.

1934. No lock or other device restricting access to a dwelling may be installed or changed without the consent of the lessor and the lessee.

If either party fails to comply with his obligation, the court may order him to allow the other party to have access to the dwelling.

The tribunal explained that under the law, the only valid grounds for the denial of access by a tenant to a landlord are: the absence of 24 hours’ prior notice, the fact that the hours of visitation are contrary to the requirements of art. 1932, or the absence of the landlord or his or her authorized agent during the visits.

Conversely, the tribunal stated that where the legal requirements have been met by the landlord, a tenant must allow the required access so that the dwelling can be visited.

The tribunal stated:

“Consequently, and with respect, the law does not allow a tenant who has been duly notified of a visit to refuse access to the dwelling because of his or her own schedule or absences from the dwelling, regardless of the reason for such absences. […]

The reasons raised by the tenant cannot justify her refusal to allow the landlord access to the dwelling, even in a period of pandemic.” [translated]

As a result, the tribunal issued an order requiring the tenant to give access to the landlord, subject to compliance with the legal formalities by the landlord. 

Additionally, the tribunal ordered that the landlord or any person accompanying him must respect certain formalities imposed by the COVID-19 pandemic, namely:

  • Wash (or disinfect) hands before entering the dwelling;
  • Avoid touching surfaces and disinfect if necessary;
  • Wear gloves and a mask; and
  • Respect the rules of social distancing of two meters.

Finally, the tribunal refused to award any damages for harm suffered, explaining that moral damages cannot be awarded to a landlord in the context of a residential housing application before the Régie du logement. 

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Baker & Company has adopted all of the COVID-19 safety precautions and vulnerable employees have been invited to work from home. We are fully operational and continuing to work on client assignments. Where possible, meetings are being held via video link or by telephone conference.

At Baker & Company in Toronto, our real estate lawyers take the time to speak with you and understand your unique needs in order to guide you through your real estate matter, whether commercial or residential. We rely on our broad base of experience and expertise to provide exceptional legal advice and risk management in a variety of leasing issues. Call us at 416-777-0100 or contact us online for a consultation.

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