When the time comes to renovate… who may carry out my works in all legality?

Published on by Association des Propriétaires du Québec

Topic(s): Regulation

Source: APCHQ

When the time comes to renovate… who may carry out my works in all legality?

When the time arrives to renovate a housing several owners of buildings are caught unprepared or notice at their expense that the laws, the collective agreements and the regulations of the construction industry also govern the works that must be carried out on a rental building… But how to disentangle all of this?

 

Among all the applicable regulations a law encompassing the industry has a major impact on work being done on a rental residential building. It concerns the Act Respecting Labour Relations, Vocational Training, and Workforce Management in the Construction Industry

(Act R-20).

 

From the beginning, remember that in theory all the works that can be carried out on a building site of construction is subjugated to Act R-20 since they are comprised in the general definition of the word “construction” which defines the field of application of this same law:

 

“construction”: works of foundation, erection, maintenance, restoration, repair, modification and demolition of buildings and works of civil engineering carried out on the very premises of the building site and ready-to-start, including preliminary work of ground work.

 

Consequently, as envisaged by the law, the activities defined above must obligatorily be carried out by salaried employees having a certificate of competence emitted by the Commission de la Construction du Québec (CCQ) and hired by a company holding the suitable license of contractor emitted by the Régie du Bâtiment du Québec (RBQ).

 

If liability constitutes the guiding principle of the application of Act R-20 certain exceptions were in addition designed to exclude from the field of application specific work carried out in a particular context or in quite precise conditions.

 

In order to well-understand the range of these exceptions and thus identify the works which may be carried out by the owner himself, by one of his salaried employees or via a contractor and this, without being constrained by the regulations and the collective agreements rising from Act R-20, we propose to you, in the lines that follow, 5 anecdotes drawn from real-life cases applying to construction projects carried out on buildings with residences.

 

Situation A

 

In addition to his regular occupation as a dentist operating his own clinic, Mr. Bertrand is personally the owner of several rental buildings. To help him with the management of his buildings, he recently hired a caretaker who deals with carrying out the list of works in his buildings, such as painting, plaster repairs, the waxing of the floors, etc… His caretaker does not have a certificate of competence of the CCQ but Mr. Bertrand quickly realizes that he is a very skillful person for manual tasks… Does Mr.Bertrand have the right to have minor works carried out in his rental buildings by his caretaker?

 

 

Answer: YES.

 

Act R-20 excludes this type of minor works when they are carried out by permanent employees hired by an employer other than a “professional employer”. Within the meaning of Act R-20 a “professional employer” is an employer whose principal activity is to carry out building works and who usually employs employees for a kind of work which is the object of a collective agreement. If the majority of the activities of your company is not connected to construction you are not a professional employer. Such is the case of Mr. Bertrand supposing that he is himself the owner of the buildings (he is not the owner through a company). You have thus the right to hire, in a permanent way, on your regular payroll, an employee who is not a regular employee of the construction industry, and this one can carry out minor works of maintenance and of repair, that is to say:

 

 

1. Repair: Repair constitutes an action taken following a reduction or suspension of the use of a good, because of a deterioration for lack of maintenance, or the dilapidated state (because of age) of the object. Ex: repairing a hole in a gypsum wall.

 

2. Maintenance: Work which is carried out on a more or less regular basis with a preventive end, precisely to avoid the deterioration or the wear of a good. Ex: refreshing the painting of the walls.

 

 

Situation B

 

Mr. Gendron owns a duplex and he lives himself in the first rented housing on the ground floor. Because of the advanced age of the building, Mr. Gendron considers replacing himself his own kitchen cupboards in his housing. Does he have the right to do this?

 

Answer: YES,

 

The law allows the owner of a housing, as well as the owner of a one-family house, to carry out modification and restoration, repair, maintenance work in the housing where he lives. Mr. Gendron can thus replace his own cupboards. However, when similar work is done in the housing of a tenant, since it is not maintenance and minor repair work carried out by the caretaker (see the preceding situation) and since this space is rented for lucrative ends, it is then necessary to have works of restoration and modification carried out by a contractor holding a license emitted by the RBQ and of the employees holding valid certificates of competence for the required trades.

 

3. Restoration: In the case of a restoration, it is a question of tasks carried out in order to improve or to modernize a good or a structure, without however changing the finality of it or the use for which it is intended. Ex: changing the old external facing in vinyl in order to put  Canexel on it.

 

4. Modification: Contrary to restoration, modification results in structural changes brought to a building, a room or a structure, to accommodate a new use. Ex: One separates a room in two distinct parts to create a reading room.

 

 

Situation C

 

Mr. Richard owns a building with four residences. Following the abundant spring rains he realizes that the roof of the dwelling, built 30 years ago, must be redone. No problem. Mr. Richard envisages to do the work next week with his brother-in-law who already did this kind of roofing work in the past on his own duplex. Do Mr. Richard and his family have the right to do their work?

 

Answer: NO

 

When it concerns works on the common portions of a revenue-generating building these works must obligatorily be carried out by a contractor holding a license emitted by the RBQ and by employees holding valid certificates of competence. Several other types of work of modification and restoration on the common portions of a building are subjected to the same conditions. This is for example the case with works of changing the drains, of modification of the external coating or the replacement of doors and windows.

 

 

Situation D

 

Mrs Lamothe is personally the owner of a triplex and she lives in the upper-floor housing. With the arrival of summer she wishes to have a double garage built at the back of the court- yard behind the building. May she carry out the works herself?

 

Answer: YES

 

Moreover, Act R-20 comes to bring some conditions… If the garage is only used for the personal purposes of the owner then the works are not regulated by the law, as well as the building works of an adjacent transfer at an inhabited one-family house, for the personal and non-lucrative ends of the owner.

 

On the other hand, if part of the garage is also used as storage for the tenants, then the works will have to be carried out by a contractor holding a license emitted by the RBQ with employees holding certificates of required competences since the garage is not being used any more for the exclusive and personal ends of the owner.

 

 

Situation E

 

Mr. Dupont is the owner of a duplex and he lives in the rented housing of the ground floor. He wishes to build a garage contiguous to his building for his personal and non-lucrative ends, but with a room above it so that his son can reside there during the summer. May he carry out the works himself with the assistance of his tenant above?

 

Answer: NO

 

In this case, one indirectly increases the liveable surface of the building by

creating a space on top of the garage. It is not any more a question of restoration or modification, repair, maintenance work; but rather a new portion is built. Since the totality of the building work of the garage includes a portion which is subject to Act R-20 the whole of the project will have to be entrusted to a certified contractor hiring employees, holders of certificates of competence.

 

In short, in order not to find yourself in hot water, it is imperative to take into account certain legal aspects before undertaking works on buildings with rental spaces. According to the work which you will carry out it may be that Act R-20 contains an exception enabling you to carry out your tasks yourselves or with one of your permanent employees who is not a worker of the construction industry.

 

The problem is that this law, like many others, comprises its batch of traps. It can appear very austere for a non-advised eye. Certain terms usually used can have an unsuspected meaning and generate an important impact on your obligations and the cost of your project.

 

Marie-Claude Tremblay

Advisor in labour relations

APCHQ

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