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Tenant on leave: Access to the owner must be maintained during the absence of the tenant

Tenant on leave: Access to the owner must be maintained during the absence of the tenant

During the period of a lease it frequently happens that a landlord needs to have access to the housing for one reason or another.

At that time the tenant must act in good faith and facilitate access to his dwelling. Thus, if the tenant leaves for a vacation, he should take the necessary steps to appoint someone with whom the landlord could communicate to access his housing. Indeed, the owner has no right to enter a tenant’s dwelling in his absence without his written consent. This would be contrary to at least three of the most fundamental rights of the tenant recognized in the Charter of Rights and Freedoms of Quebec:

“5. Everyone has the right to respect for his private life.“

“7. A person's home is inviolable.”

“8. No one may enter upon the property of another or take anything therefrom without his express or implied consent.”

One may exceptionally derogate from this rule in case of emergency (flooding, fire, significant breakage, threat to health and safety). You will have to justify this exemption, you must therefore consider the advantages and disadvantages before taking action and make sure you have a witness with you. In these cases, using the police or fire department should also be requested.

Given the complications this may cause we strongly suggest that you take the time to discuss such a situation with your tenant before it occurs and foresee a procedure in case of absence of the tenant.

Unfortunately, if the tenant is not actually available for a long time and no procedure has been provided for this purpose, the owner may, at this point, begin proceedings to obtain an order from the Régie du logement requiring the tenant to give him access to the housing. In addition, if the failure to provide access causes serious and substantial damage to the owner, he might even obtain the abrogation of the lease.

Ultimately, such careless behaviour of a tenant could open the door to claims for damages by the owner who has been victim of such a refusal. All these rules also apply when the tenant refuses access for re-renting at the end of the lease if he has given notice to the owner that he did not renew his lease for instance. In this case, loss of rent caused by this behaviour will be considered as damage suffered by the owner.

Finally, it has been established that, if the tenant installs an alarm system, he must provide the code to the owner, otherwise it would be a mechanism restricting access and contrary to the law.

About the author

Me Jean-Olivier Reed, avocat

Me Jean-Olivier Reed est diplômé du Collège l'Assomption en technique juridique en 1997 puis de l'Université de Montréal en droit en 2001. Membre du barreau depuis 2004, il fut avocat et gestionnaire d'immeuble pour une de 2004 à 2006.

Avocat chez Messier Soucy avocats depuis 2006. Il évolue dans le droit immobilier et plus particulièrement en droit locatif et en droit de la copropriété.

Il a écrit plusieurs articles dans le journal "Le Propriétaire" sur divers sujets traitant du droit locatif.
Il donne des conférences aux membres de l'Association des propriétaires du Québec sur des sujets actuels en droit locatif.

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