The repossession of a housing: an exception where each criterion is essential!

Article locked Published on by Me Annie Lapointe

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

The repossession of a housing: an exception where each criterion is essential!

Whether it is a project of a couple, with friends or family, it happens for all kinds of reasons that one decides to buy a home with others. However, this way of owning a dwelling may not be adapted according to the project concerned.

It happens indeed that a coveted building also has an interest, in addition to the investment, to make it one’s home. Every year unfortunately, some people are unable to repossess the desired dwelling, without fully understanding the reason.

Often, it is the mode of purchase that is the problem. The law is clear, but not always well known and understood: in the event that there is more than one co-owner, if the other co-owner is not our spouse, or if there are more than two co-owners, the repossession of the housing is not allowed. In other words, unless the tenant agrees to leave the premises of his own will, the law would be of no use to you to repossess your housing in order to live there.

Sometimes the situation of indivision is not desired at the beginning, but occurs along the way, most of the time with the aim of facilitating financing and acquisition of the dwelling. Let us give the example where the gentleman wishes to acquire a building in order to live in one of its units. During the purchase process, the financial institution suggests that he have a deposit, and then finally buy with a parent, who would only own 1% of the property, as an example. The buyer will remain the primary owner; so the impact is minimal, isn’t it?

If one wishes to repossess a dwelling, the consequences are certainly real: “19 The text of section 1958 of the Civil Code of Québec is clear and prohibits any indivision (except with a spouse) to give rise to the right to repossess: whether the percentage is 99.9% or 50% does not change anything in this clear text.”

This idea was repeated again this year in the following judgement (2):

"49 Such a situation precludes the resumption of a housing, as rightly mentioned by administrative judge Luce de Palma in Cornett v. Loyer 2:

“With respect, the court must in this case rather agree with the tenant and conclude that the authorization sought cannot be granted in view of the clear prohibition of section 1958 of the Civil Code of Québec.

Indeed, regardless of the purpose sought by the landlords when they consented to the landlord’s mother appearing on the title deeds, as well as their intention to remain in that dwelling, the fact remains that, by the legal situation thus created, all three of them became co-owners. This is unequivocally a situation where the repossession of a dwelling is prohibited by section 1958 of the Civil Code of Québec, while no interpretation, however liberal, can override such a prohibition by the legislator.

Let us not ignore either, the situation of a separated couple where the two are owners together of a building. Separation often rhymes with moving, it is not uncommon for one of the two ex-spouses to want to live in one of the units of the building for a certain time. Again, as long as there has been no transfer of ownership to only one of them, the repossession of a dwelling could not be granted in case of refusal on the part of the tenant. Indeed, since the owners no longer qualify as “spouses,” only one of them will now have to be an owner if he wishes to begin the process of repossession of the housing!

Finally, before venturing into a process of housing repossession, do not hesitate to contact our specialized team.

(1) Amram v. Arnstein, 2017 QCRDL 21154
(2) Chakraborty v. Haniff, 2021 QCTAL 4052

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