Responsibility is a double-edged sword

Essentially what happened was that on a certain Saturday morning, in a certain high-rise apartment building during the winter, pipes broke and flooded several apartments.

Naturally, the landlord’s representatives were informed. However, in the particular case of the tenant mentioned here, no representative of the landlord came to the tenant’s dwelling — other than to look in the door — to assist in the clean-up.

The tenant was forced to do it himself, with the help of friends and/or paid persons. The landlord was definitely not very welcoming in resolving the unfortunate occurrence.

The bursting of pipes and resulting water leak was such that even the exterior balcony was affected (see photo). It is rare that icicles form on a balcony, but we do have ferocious cold weather sometimes during the winter months, and every landlord should be aware and have contingency plans.

A landlord has the “obligation of result” in maintaining a building. This means that he must make sure it remains in the condition required by law so that it can be used as a dwelling. And he must keep it that way. Read the law quoted below.

Article 1912, CCQ:

The following give rise to the same remedies as failure to perform an obligation under the lease:

1. Failure on the part of the lessor or the lessee to comply with an obligation imposed by law with respect to the safety and sanitation of dwellings;

2. Failure on the part of the lessor to comply with the minimum requirements fixed by law with respect to the maintenance, habitability, safety and sanitation of immovables comprising a dwelling.

1991, c. 64, a. 1912.

It is, of course, a double-edged sword. The landlord and tenant both have the legal requirement to keep the apartment in good condition and not cause damage.

If the tenant sees that something is causing or may cause problems for the landlord, or even other tenants, he must inform the landlord within a reasonable time, otherwise the tenant himself may be held liable. No one has the right to ignore a problem in a building, be it tenant or landlord.

A major proviso I may add to this is that there are some limitiations if an ordinary person does not have a reasonable amount of competence in a certain area; the law cannot expect him to be aware of a problem that would usually require an expert to recognize. The court would have the final say in the particular circumstance.

Lease Article 21: A lessee who becomes aware of a serious defect or deterioration of the dwelling shall inform the landlord within a reasonable time (Art. I866 C.C.Q.).

The tenant was then forced to clean up by himself. He had to bring his friends in plus hire others. The tenant then had the obligation, when making a claim, to inform the building owner, in a concise and precise manner, such that the landlord may verify for himself that the alleged condition (leak and damages in this case) exist.

In an emergency, this time limit is often very short. Damage occurred to the parquet flooring in several places. Walls bore evidence of the leaking water. Many books in the tenants library were damaged. We all have seen how when a book becomes wet it can swell to twice its size and almost never be returned to the former condition. The tenant even had his favourite bible ruined. So he became a little touchy when the landlord did not adequately respond.

In this type of circumstance, when a landlord refuses or neglects to act, a tenant should specifically warn the landlord via a legal letter (m-e-d). He may then do what is necessary to return his own to the condition required by law and open a case at the rental board (la Régie du logement) for recovery of any damages, amounts spent, etc.

The tenant has sent a letter to the landlord, made various amendments to be sure his claim is complete, served all notices, Demandes and amendments on the landlord and will present his proofs.

The tenant will have receipts, proof of service, photos and witnesses with him in court, (la Régie du lodgment)

He knows that he has one chance to present his case, in order to guarantee, as much as is possible, that the Régisseur appreciate the proofs and seriousness of the water leak.

Many readers assume falsely that a decision can be automatically appealed. The truth is that since 1994, a person must apply for “Leave to Appeal”. That is, a judge will examine the issue and decision, and decide, based on law, not proofs presented, whether or not an appeal is warranted. I repeat that no automatic right to appeal exists. Always be prepared to present your case in its entirety and consider strongly that it will end as soon as the Régisseur takes it under advisement.

A bit more about mandates

This is a little follow-up to my last column on mandates. You may access the article by internet (westmountexaminer.com) and (westislandchronicle.com)

Dear Ted:

Can the landlord (a numbered company in a management partnership in Toronto with the property located in Montreal) use the Montreal apartment building concierge as its mandatary and also use a lawyer at the hearing at the Régie?

Q.E.

And another question from the same person, very similar.

Dear Ted:

At the hearing at the Régie, the Concierge /Mandatary stated that the Concierge/ Mandatary is the only person with the capacity to interact with the lessees in the apartment building in Montreal and yet the lawyer was presenting the case also.

One Régie agent said this follows procedure and another agent said it contravenes Art. 72. Can you be the tiebreaker, as I may not have made the situation clear to you initially?

I cannot make a decision as to what to do next until I am clear with this discrepancy.

Q.E.

I answered:

"Interaction" with a tenant can have several forms:

1. Day-to-day in building. Normal things concerning building.

2. Legal things related to building, in the building.

3. At court, representing landlord. Legal things outside building.

4. Mandate as decided by landlord and permitted by law. (These can vary as per need and decided by owner, capability, law, contract and specific circumstances.).

5. "Interaction" in the building and legal representation at a court hearing are two different things. Two different mandates and or levels of representation are distinctly possible.

The quoted regulation, mentioned above, Article 72, is as follows:

A natural person (i.e. real live one) may be represented by his or her spouse, or by an advocate.

If a natural person cannot appear personally by reason of illness, distance or any other cause considered sufficient by a commissioner (Régisseur) he or she may also be represented by a person related to him or her by blood or by marriage or a civil union or, if there is no such person in the territory of the local municipality, by a friend.

A legal person (i.e. a company) may be represented by a director, an officer, an employee exclusively employed by it, or by an advocate.

So you can see that in law, several levels of representation can exist side by side.

The concierge can have the day to day representation on behalf of the landlord, repairs, receiving telephone calls, scheduling visitations etc.

A lawyer can write legal notices, send registered mail or legal letters and or sign Demande forms at the Régie du logement plus represent the landlord at court.

All of these are legal, as per the law, and can co-exist, side by side.

• 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.