A landlord can correct a notice of enlargement of a dwelling when the notice is irregular

Published on by Me Robert Soucy

Topic(s): Regulation

Source: Messier Soucy Avocats

A landlord can correct a notice of enlargement of a dwelling when the notice is irregular
The Facts

The tenant asks the Rental Board to grant his opposition to the enlargement of the dwelling he occupies. On July 22, 2011, the tenant received by bailiff a notice of eviction from the landlords who wanted to enlarge apartment.. The aforementioned notice was signed by only two of the four landlords. On July 26, 2011, the tenant submitted his request opposing it. On December 15, 2011, by registered mail, the landlords sent the tenant a new copy of the notice of eviction signed this time by the four (4) landlords ratifying the previous notice.

Discussion

The tenant's lawyer argued that the second notice dated December 15, 2011 did not validate the first notice of eviction dated July 18, 2011.
In the case of Ronald Simard vs. Diane Courcy, cited by the Rental Board (1), the Court expressed itself as follows regarding the ratification and of its effects:
“The Civil code of Quebec foresees the possibility of ratifying a legal document in certain precise cases. For instance, the constituent can ratify the act of one of their agents who exceeded the limits of his mandate (art. 2158 CcQ).
Article 1420 CcQ provides that a contract that is relatively null may be tacitly confirmed. ”
Another decision of the Court of Quebec was cited in which the Court determined that the ratification had a retroactive effect. (2)

After having studied the jurisprudence, the Rental Board concludes that the ratification has a retroactive effect:
“The undersigned concurs with the case law and is also of the opinion that the ratification of the notice by the owners who had not initially signed it validates the notice retroactively. More specifically, it was shown that the latter had entrusted the mandate to one of the first two signataries to proceed with the notice on their behalf, and the existence of this mandate is not essential for the validity of the later ratification. ” (3)

The enlargement of the housing

According to the evidence presented before the Rental Board, the landlords are the owners of four buildings forming a quadrilateral. None of the apartments comprises four rooms. However they want to equip the building in question with some residences of four rooms in order to attract families, the type of tenant they consider to be more stable and more reliable. The renting of a more spacious dwelling will also enable them to draw a more substantial income from it. The landlords furnished proof of the plan for their project, the permit obtained from the City, as well as the proof of the renewal of the latter. They also showed their financial capacity to carry out the project.
The Rental Board dismissed the tenant's opposition to the enlargement of his dwelling. The Court ruled that it was not up to it to rule on the appropriateness of the landlords' plans, so long as there was a legitimate reason and that they are exercising their right to do so in good faith. The Rental Board quotes author Pierre-Gabriel Jobin in his work on leases, on the subject of the landlord's obligation to show good faith:
“The landlord shows his good faith by proving the seriousness of his project, more particularly, he must establish that it can be carried out and the preparatory steps which he undertook to carry it out (…). Obtaining a permit to carry out the work should not be an essential criteria (…). When however the landlord has obtained his permit, that constitutes strong evidence of his good faith and of the legality of the project. ” (4)
In a project to enlarge a dwelling, the landlord must show that the law authorizes him to carry out his project. By obtaining a permit from the City to modify the dwelling, the landlord establishes that the law allows him to enlarge the dwelling and also shows his good faith. For the opposition to succeed, the tenant must prove the landlord's bad faith, or that the landlord is acting in a harmful way.

(1) Simard vs. Courcy, 2005 J.L. p 357 to 371
(2) Gauthier vs. Chayer, C.Q. Montreal 500-02-027425-961, on January 28, 1998, Judge G. Poirier
(3) R.L. 31 110726 024G, on January 25, 2012, Me Linda Butcher
(4) Pierre-Gabriel Jobin, Treatise on civil law, Renting, 2nd edition, the Editions Yvon Blais Inc., 1996, p 583

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