Delivering the property and providing enjoyment of the premises
Delivering the leased property
“The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease.”1
This obligation applies to both commercial and residential leasing. The lessor is required to deliver the leased premises in a good state of repair of any kind and, in the case of a dwelling, in good habitable condition.2 The lessor will have fulfilled his obligation when he gives the lessee actual possession of the leased premises, or at least consents to the lessee taking possession, having taken care to remove any obstacle.
In real estate leasing, the handing over of the keys constitutes delivery. The lessor is also required to provide the lessee with peaceable enjoyment of the leased premises throughout the term of the lease.3 This is called an obligation of result.
Providing enjoyment of the premises
The lessor is bound to warrant the lessee against legal disturbances4 to the enjoyment of the leased property.5 Before pursuing his remedies, the lessee must notify the lessor of the disturbance.6
Conversely, the lessor is not bound to warrant against or make reparation for injury7 caused by a third person, except where the third person is also a lessee of that property or is a person the lessee allows to use or to have access to the property.8
However, if the enjoyment of the property is diminished, the lessee retains his other remedies against the lessor.9
Thus, the lessor must guarantee the lessee against defects that could affect the leased premises in such a way as to render them unfit for use or to diminish their use. To avoid liability, the lessor must show that the non-performance is due to a force majeure (a storm, for example), the act of a third party (a person who is not another lessee and who is beyond the control of the lessor), or the need to make urgent repairs.
A lessee whose enjoyment of the premises is disturbed by another lessee, or by persons whom another lessee allows to use or have access to the property, may apply to the court for a reduction in rent or termination of the lease,10 if he notified the common lessor of the disturbance and if the disturbance persists, where the non-performance causes serious injury. The lessee may also recover damages from the common lessor.11 The lessor can avoid liability if he can prove that he acted with prudence and diligence. Note that the lessor retains his remedy against the lessee at fault in order to be compensated for the injury suffered.12
While a lessor cannot require a lessee to give up peaceable enjoyment of the premises, a commercial lease may include certain clauses negotiated between the parties that restrict this right:
- A clause by which the lessee waives his right to exercise a remedy against the lessor if his peaceable enjoyment is disturbed by another lessee of the immovable, despite 1861 C.C.Q.;
- A clause by which the lessee allows the lessor to enter the premises to perform work, without compensation or liability;
- A clause by which the lessee waives his right to seek termination of the lease if regulations do not allow the property to be used for the purpose for which it was leased, despite article 1854 C.C.Q.;
- Etc.
1 Art. 1854 (1) C.C.Q.
2 Ibid.
3 Art. 1854 (1) C.C.Q.
4 The legal claim of ownership of the leased property or any other real right attached to it.
5 Art. 1858 (1) C.C.Q.
6 Art. 1858 (2) C.C.Q.
7 The action of disturbing the lessee in the enjoyment of the leased property, by a material act.
8 Art. 1859 C.C.Q.
9 Art. 1859 (2) C.C.Q.
10 Art. 1861 (1) C.C.Q.
11 Art. 1861 (2) C.C.Q.
12 Ibid.
