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Before going any further
you should be aware that you cannot assign your
lease or sublet if :
- you are a student renting
a dwelling in an educational institution ;
- you are a tenant in
low-rental housing ;
- you are the tenant of
a dwelling which is used as the family residence
and you or your spouse (married person only) have notified the
landlord
of this, unless your spouse has given written consent to the
assignment
or sublet.
Note : In certain cases
(such as joint tenancy) there may be restrictions on the
right to assign or sublet. Ask for information at the Régie.
Assignment, Subletting : What's the difference
?
If you are a tenant who
wants to leave a dwelling, the first question to ask
yourself is whether you may want to return to the dwelling.
If you are leaving temporarily
for a trip, studies or a job for a few months and
you wish to avoid paying rent fort a dwelling that you are not
living in, then
subletting would be a good solution. You are still the
tenant with all of your
rights and obligations intact. If, on the other hand, you
are moving into a new
house or to a job in another city, you would no doubt prefer to
be released from
your lease and its obligations. In this case it would be best
to assign your lease :
you then renounce to your right to return to the dwelling.
Assignment and Subletting : Similarities
Here are the formalities
that are identical in both situations.
First let's define our
terms.
- the assignor
is the tenant who is assigning his lease, i.e., the person who
is leaving the dwelling ;
- the assignee
is the person to whom the tenant assigns his lease, i.e., the
one who will live in the dwelling ;
- the sublessor is
the tenant who sublets, i.e., the person who is leaving the
dwelling ;
- the sub-tenant
is the person to whom the tenant sublets the dwelling, i.e.,
the one who will be living there.
Notice of Assignment or Sublet
You have found someone
who is interested in your dwelling, as an assignee or a
sub-tenant. Sign a written agreement right away (assignment of
lease agreement
or a sublet lease) which will be conditional on the landlord
granting consent.
Concluding the agreement will be explained later on.
Next, advise the
landlord, in writing, of the name and address
of the interested person :
this information must be given. Needless to say you may
also provide the landlord
with further information as long as you have the consent
of your «candidate».
The notice should also include the projected date for the assignment
or the sublet.
We suggest that you use the models of these notices which are
available at the Régie.
Make sure that you can
prove the date that the landlord received the notice because he
has 15 days from this date to let you know whether he accepts
or refuses the person you
have proposed. If he does not reply, he is presumed to
have accepted.
If he agrees, the landlord
has the right to be reimbursed for reasonable related expenses
(for example, the cost of a credit search).
Refusal of Assignment or Sublet
If the landlord refuses
the person you have proposed, he must inform you and give you
the reasons which must be serious.
For example, unacceptable
behaviour by the person or his inability to pay could be serious
justification for refusal.
So it is a good idea for
you to do a complete reference check before proposing your
candidate !
Recourse in the case of refusal
If the landlord gives reasons
which do not seem serious, you can ask the Régie to assess
these reasons or to cancel your lease.
If the Régie determines
that the landlord's refusal is unjustified, it can declare valid
the
assignment or the sublet. The landlord may have to pay damages
if his refusal has caused
you a prejudice.
When you come to the hearing,
bring along all the documents necessary for your proof.
Make sure that the proposed assignee or sub-tenant has been summoned
to be present as
a witness : his presence is essential !
Assigning and Subletting : Differences
Assignment and its effects
On the assigning tenant
You hand over all your
rights, including the right to maintain occupancy, to the assignee.
You are freed from all obligations as of the date of the assignment.
Therefore, you do not have to send a notice of non-renewal of
the lease.
On the assignee
The assignee is not a new
tenant in the eyes of the law. Therefore, he does not have the
right to ask the Régie to set the rent. However, on becoming a
tenant, he acquires all the rights and obligations of the lease.
As he is bound by all of the conditions of the assigned lease
he should obtain a copy of it from the assigning tenant.
On the landlord
Once the assignment takes
effect, the landlord is bound to the assignee. It is to the assignee
that all notices concerning the lease must be given and from him
that the rent must be collected. The landlord does not sign
a new lease with the assignee.
The assignee takes the
dwelling in the condition in which he finds it or that it was
in when he visited it.
Subletting an its effects
On the tenant (sublessor)
As the tenant who sublets
the dwelling, you remain entirely responsible for all the
obligations of the lease.
Before the sublease is
concluded you must give the sub-tenant a copy of the building
regulations, where applicable. The sublease must indicate all
the main obligations that you have toward the landlord (e.g.,
snow removal) or refer to the obligations. In this last case you
must give the sub- tenant a copy of the main lease.
As a sublessor, you are
obliged to :
- deliver the dwelling
in a good habitable and clean conditions, and in a good state
of maintenance and repair in all respects ;
- ensure the peaceful
enjoyment of the premises.
For example, if necessary
repairs are not completed, the sub-tenant could take recourse
against you, the sublessor. You would then have to oblige the
landlord to respect his obligations toward you.
ATTENTION
: You are still responsable for the lease. To avoid its renewal
you must give the landlord a notice of non-renewal within the
appropriate time frame.
However, if the dwelling
has been sublet for more than 12 months (whether consecutive or
not), the landlord may put an end to the sublet. Ask the Régie
for further information.
On the sub-tenant.
The sub-tenant is bound
by the terms of the lease he signed with you but he does not have
the right of occupancy since you maintain the right to reclaim
the dwelling at the end of the sublet.
You also retain the right
to end your lease in the manner and time period set out
in the law.
If you do not renew the
lease and if the sub-tenant wishes to remain in the dwelling,
he should try to sign a new lease with the landlord.
NOTE :
The sub-tenant is not obliged to leave the premises unless he
has received a 10 days notice to vacate from the tenant
or the landlord. Ask the Régie for information on this subject.
In addition, as a new tenant
in relation to you, the sublessor, the sub-tenant has the right
to ask the Régie to fix the rent if the rent he is paying is higher
than either the lowest rent paid during the 12 months before the
sublet or the rent fixed by the Régie.
Therefore, according to
the law, you must give him the " Notice to new
tenant" at the conclusion of the lease.
On the other hand, if the
landlord does not carry out his obligations, the sub-tenant can
exercice the rights and recourses of the tenant to force the landlord
to take action.
On the landlord
The landlord retains all
of his rights and obligations toward the tenant who has sublet.
If the sub-tenant, by neglecting
his obligations, causes serious prejudice to the landlord, other
tenants or occupants, the landlord can ask for the cancellation
of the tenant's lease or of the sublet since this recourse is
specified in the law.
Concluding a lease agreement : Here's
how
The Régie du logement recommends
that you use the very simple conditional agreement model which
is supplies entitled «Assignment of lease agreement»
and that you complete it before sending the notice of assignment
to the landlord.
Before signing the aggreement,
give the assignee all the relevant information in your possession
and let him know if you have received a notice from the landlord
such as a notice of rent increase.
Concluding a sublet lease : Here's how
First obtain the mandatory
lease form of the Régie du logement. In the box for identifying
the parties cross out the words «tenant» and
«landlord» and replace them with «sub-tenant»
and «sub- landlord» respectively. Of course
the contract is conditional on the landlord's acceptance
of the sublet.
Certain conditions of the
sublease may be different from those of the main lease but they
must not come into contradiction with the main lease so as to
give the sub-tenant more rights than the tenant already has. For
instance, if it is forbidden in the tenant's lease to keep an
animal, the sub- tenant cannot keep one. On the other hand, if
an animal is allowed according to the main lease, the sublease
can forbid it. It would be the same for a parking space and so
forth.
Fees
The Régie du logement charges
a fee when you file an application. This fee is never refunded
in cases of an application being withdrawn or of an agreement
being reached before a hearing.
Any one who can prove that
he or she is a recipient of financial support in virtue of the
Act Respecting Income Security need not pay this fee.
In his decision, a commissioner
may order the defendant party to refund the fee to the other party
in whole or in part.
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