Cet article examine la légalité d’une cession partielle d’un bail en fonction des modifications amenées au droit du logement par le projet de loi 31.

Auteure: Beata Elliott

Modifications to the Civil Code of Québec in matters of Lease Transfers

One of the reforms to Quebec housing law brought on by Bill 31: An Act to amend various legislative provisions with respect to housing is section 1978.2 of the Civil Code of Québec (hereafter, “C.C.Q.”). As is explained in depth in this helpful article by the CSU Off-Campus Housing & Job Resource Centre (HOJO), landlords can invoke this new section of the Civil Code to refuse lease transfers without a serious reason. In such cases, the lease is resiliated on the date of the intended lease transfer. This new rule can be relatively simply applied to tenants who live alone, or to roommates who all wish to transfer their portions of the lease at the same time.

What of lease transfers with more than one tenant ?

It remains unclear, however, how it applies in situations where one tenant wishes to transfer their lease but the other wishes to remain in the dwelling, and the landlord refuses the lease transfer. Would a refusal by the landlord of one lease transfer lead to the resiliation of the lease of all other tenants living in the apartment ?

Section 1978.2 does not address this scenario. Looking to the caselaw for further clarification, one is equally hard-pressed to find an answer. Since Bill 31 took effect in February 2024, the TAL has only heard 12 cases citing section 1978.2, the amendment allowing landlords to refuse a lease transfer for a “non-serious” reason. In all of those cases, every tenant involved in the lease wanted to transfer their portion of the lease.

The only case that came close to answering the question at hand is Eisdorfer c. Lalonde.^[1] In this case, a tenant had invited their friend to live with them and pay rent to them instead of to the landlord, without adding that friend to the lease or declaring a sub-lease. The tenant then tried to transfer their lease to said roommate. When the landlord refused the lease transfer, the tenant tried to claim that because they were only transferring one portion of the lease, the lease could not be resiliated.

The judge rejected this argument on the basis that the roommate was not on the lease. The original tenant was therefore transferring a full lease and not just their own portion of it. The judge did not clarify in obiter whether it would have been possible to resiliate only the original tenant’s portion of the lease if the roommate had already been on the lease. Unfortunately for the roommate, they were ordered to vacate the premises.

Insight gathered from a non-renewal of lease by different tenants 

Thus, to determine whether a landlord’s refusal of a lease transfer for a non-serious reason would resiliate all or only part of a lease with multiple tenants, it is necessary to look at analogous situations in Quebec housing law. The situation where one tenant refuses to renew a lease while another tenant renews the same lease may provide helpful insights.

When one tenant decides not to renew their lease and the other decides to remain in the dwelling, the remaining tenant is allowed to stay, and remains responsible for paying the full rent. The lease is thus renewed with only one tenant. Although that rule is not codified in the C.C.Q., it is stated on the TAL’s website, and judges at the TAL have regularly ruled that tenants who renew their lease without their roommate are made responsible for paying the full rent.^[2]

Moreover, Morneau-Sénéchal writes in Le louage résidentiel that roommates have a joint obligation toward the landlord and not a solidary one, unless otherwise specified.^[3] This means that each tenant is responsible for only their part of the lease. Morneau-Sénéchal does not address whether it is possible to resiliate only one part of a residential lease, but given that tenants can sub-lease their part of the lease, it seems likely that it would be possible.

Summary

Granted, the TAL in future decisions may or may not choose to deal with cases of landlords refusing the transfer of one portion of a residential lease the same way they handle cases where one tenant renews a lease while the other does not. Should the TAL choose to apply the same principles to lease transfers, it would be possible for a tenant to proceed with a lease transfer the other tenants being forced to leave the dwelling. That is to say that the tenant who attempts to transfer their lease and who faces a refusal by their landlord without “serious motive” will solely have their portion of the lease resiliated. The remaining tenant will be allowed to remain, but made responsible for paying the full rent.

While we wait to see what the TAL will eventually decide in these cases, tenants in such situations face great uncertainty. To be continued !

* Photo de couverture: Québec : Chambre à coucher / Edgar Gariépy . – [19-] CA M001 BM042-Y-1-P2194. Archives de la Ville de Montréal.

^[1]  Eisdorfer c. Lalonde, 2024 QCTAL 21972.

^[2]  See for example Gagnon c. Hébert 2018 QCRDL 33555; Costandi c. El Mekki 2021 QCTAL 1603; and Immeubles Faustin c. Martineau 2020 QCRDL 2733.

^[3] Antoine Morneau-Sénéchal, Le louage résidentiel (Montreal: Wilson & Lafleur, 2020), p. 40.