By Accepting Rent, You Give Up the Free Disposal of the Property

This is a case where a landlord is claiming moral ($5,000) and punitive ($5,000) damages following a fire that broke out on March 27 in one of her units by an unapproved occupant in a sublet situation.

In fact, the landlord claimed that she was not entitled to "the peaceful enjoyment and free disposal of her property, except to the extent provided by law", as stipulated in section 6 of the Quebec Charter. The Court held that the landlord could not claim this right because she continued to accept the rent during the period of the facts in dispute. By accepting the rent, she demonstrated that she agreed to continue the lease. As a result, the landlord could not subsequently claim free disposal and enjoyment of the property during the period of the disputed events.

The tenant had expressed his intention to leave the apartment in February and to surrender his lease by March 1, but no candidate was found to fulfill this condition. A candidate was proposed by the tenant, but her evasive behaviour and lack of information about her financial capacity and current contact information meant that the landlord disapproved of her application.

It is nevertheless this non-approved candidate who finally occupied the apartment and put herself in a state of subletting, despite the refusal of the landlord. Meanwhile, it was the tenant who resided until February who continued to pay rent to the landlord until June while letting the new occupant live in his unit. 

The damage crystallizes with the fire caused by the occupant at the end of March. The event that led to "the hassle, inconvenience, and stress normally attached to this situation that no one can foresee or wish". And this fire was caused by an occupant who had access to the dwelling "by the graces of the tenant".

According to article 1862 C.C.Q. :

" 1862. The lessee is bound to make reparation for injury suffered by the lessor by reason of any loss sustained by the leased property, unless he proves that the loss is not due to his fault or that of persons he allows to use or to have access to the property.

Where the leased property is an immovable, the lessee is not bound for injury resulting from a fire unless it is proved that the fire was due to his fault or that of persons he allowed to have access to the immovable."

The occupant cannot therefore be considered responsible for the fire since she never had the landlord's permission to occupy the dwelling. Rather, it is the tenant who is liable for the fault caused by another person, in this case the occupant, to whom he allowed access to his apartment. The Tribunal decided that the basis for the damages was not the tenant's bad faith. Even though he allowed another person to occupy his unit, the landlord still accepted the rent.

The Court found that the moral damages were still significant, resulting from the stress of dealing with the paperwork of the two insurers and doing the work following the fire damage to a couch. Instead, the landlord will receive $3,500 for moral damages, plus the indemnity under article 1619 C.C.Q. and court costs of $76.