Who has the mandate?

Mr. Wright:

All of a sudden the landlord doesn’t talk to me. A woman I do not know is returning calls. How do I know who she is and if anything we agree about is true and valid?

K.U.

Mr. Wright:

I sent a fax and an e-mail to my landlord. Now some man says he is going to come over and look at the problems in my apartment.

W.A.

Very often a tenant receives some kind of communication from a person unknown to him and wonders what to do and how to respond.

The tenant, all of a sudden, has a new and strange workman or employee communicating with him or wishing to enter his dwelling.

It appears then, that for some reason, the building owner, and or shareholders, have given responsibility, perhaps under an order from a board of directors, to an intermediary to act on their behalf. This is a legal right as envisioned by the Québec Civil Code, Article 2101: "Unless a contract has been entered into specifically in view of his personal qualities or unless the very nature of the contract prevents it, the contractor or the provider of services may employ a third person to perform the contract, but its performance remains under his supervision and responsibility."

This third person must act within the law and only as per the responsibilities ceded to him via contract and or agreement for whatever time period they shall both decide.

The Québec Civil Code, Article 2100, goes on to state: " The contractor and the provider of services are bound to act in the best interests of their client, with prudence and diligence…" and, in Article 2130, " Mandate is a contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power. The power and, where applicable, the writing evidencing it are called the power of attorney."

So you see that it is well defined and accepted, in law, that one person, for various reasons may use another person to represent him, his juridical rights, take over his obligations, vis-à-vis others, and do so in full legal standing.

But please take another look at Article 2101 above, “but its performance remains under his supervision and responsibility.” This means the “buck still stops” with the landlord even though he may have contracted with another to perform certain duties. Each person must always follow the law.

In practicality, what does this mean to the tenant and the landlord?

The landlord will not have to spread himself too thinly in the meeting of his legal obligations towards his residential lease contract holder.

The tenant will thus have a person, not the actual landlord, to meet with, discuss and arrange for services, accept the rent, complete repairs, etc.

Now what does a tenant do if he is not aware of how the landlord manages his affairs and or if the building owner has another person under contract?

Tenants should:

1. Walk down to the office, if one exists, and see who works there regularly.

2. Ask who is in the employ of and performs specific duties for the landlord.

3. Find out if there are other persons, not regularly present in the office who do repairs etc., for the landlord. (Very often, a company utilizes the same professional or casual workers to perform tasks required in the general ongoing maintenance of a building.)

4. See if these persons have regular days in which they are present in your building.

5. Check to see how long these workmen/individuals have been involved with the building.

Landlords should:

1. Have a list of regular employees posted on the office wall.

2. Photos and expertise or areas of responsibility affixed is useful.

3. Occasionally pass out to tenants recommendations for building care with the name of their office or workmen who take care of certain aspects. This builds confidence and allows tenants to have some pride in their building which can lead to fewer complaints, etc.

4. Let the tenants know if a new person has been added to the office staff and what duties this new person will perform.

5. Have copies of mandates on file so a tenant may examine it in a non-rushed fashion.

So you see that, in a practical sense, many problems can be avoided.

But what must a tenant and landlord do if someone new is added?

The landlord must act in good faith by hiring someone who is competent and trustworthy.

The landlord remains liable for any and all problems (theft, bad workmanship, doors left open, etc.) caused by his person.

The building owner has the obligation to prove that this third person is truly working/representing on his behalf and not withhold proof from tenants, solely to be vexatious.

The tenant must act in good faith in allowing access to a bona fide workman.

The tenant must act in good faith in asking for proof of mandate. (i.e. if a person has been seen out and about the building for years and has performed many functions for the landlord, it is quite obvious that this workman/person has a legal mandate.

The tenant should examine any documents in good faith and request additional information only as needed and not solely to be vexatious to the landlord.

It would appear to me that it is in the interests of both parties to get the work done and to not cause the other party needless concerns or difficulties.

Being prepared ahead of time circumvents useless arguments, paper delays, and scheduling changes which often lead to higher costs.

• This is a general overview only. Please seek legal counsel or come and see us. Ted Wright is coordinator of Westmount Legal Clinic, every Wednesday at 3:30 p.m. at the Westmount YMCA, 4585 Sherbrooke St. W. Send questions to tedquestions@yahoo.ca or via fax to 514-277-8403, or mail to P.O. Box 48101, Montréal, Qc., H2V 4S8. Please provide a phone number to verify identity. Your name will not be published without your permission. Mr. Wright contributes to various media in Canada, both print and electronic. Should you wish personal, more extensive assistance, professional fees may apply. He may also be heard on the Know Your Rights legal show every Saturday at 2:30 p.m. on CINQ 102.3 FM. Podcasts of shows are available for one week after original airing at www.radiocentreville.com. Ted Wright is a regular contributor to CJAD 800 News on rental issues and can also be heard every so often on 940NEWS Montreal's legal affairs programme Sidebar with Dino Mazzone, every Friday evening from 8 to 10 p.m. on 940 AM.