When the rented property is an apartment, all tenants must comply with the by-laws of the immovable. However, tourists who rent a condo temporarily have often not received a copy. Therefore, without even knowing it, they may be in breach of the provisions included in this regulation. These tourists can use the parking spaces reserved for visitors, thus reducing the number of spaces available. Others park squarely in the spaces belonging to the co-owners. In addition, these temporary occupants may be less aware of safety considerations, as well as the tranquility of the co-owners. In short, they usually consider the unit they rented as a hotel room.
Landlords' rights
For their part, lessors, who advocate their right to rent their apartments without restriction, do not always realize its consequences. When they temporarily give the keys to their fraction to tenants whose stay is short-term, they often imagine having free access to the common portions of the building (e.g., swimming pool, gym and terraces). The co-owners therefore find themselves having to share them with an incessant flow of tourists.
Declaration of co-ownership
It governs without limitation the interaction between co-owners and directors, insofar as the immovable is concerned. It is a crucial legal document for living in the co-ownership. The declaration of co-ownership is divided into three parts: the constituting act of co-ownership, the by-laws of the immovable and the description of the fractions. The first two enunciate respectively:
In theory, the syndicate has no right to prevent a co-owner from leasing his apartment. However, the destination of the immovable can fix limits to the owner’s use of a private portion. Thereupon, the Quebec Court of Appeal has recognized that rentals may be restricted by a by-law, even though the declaration of co-ownership contains no specific provisions in this regard.
This being said, the declaration of co-ownership may regulate or prohibit short-term leases, in the event it is justified by the destination of the immovable. It could for instance stipulate that a given co-ownership has an exclusive residential character. The objective is to prevent a co-ownership being transformed into a hotel, so that its occupants can co-exist in harmony.
By-laws of the immovable (Enforceable against the tenant)
The co-owner who rents or lends free of charge his private portion (for example an apartment) must, within 15 days, notify the syndicate of co-owners. It must also reveal the identity of the tenant or occupant, even if the rental or occupation lasts only a few days. He must also indicate the name of the tenant or occupant, the duration of the lease or right of occupancy, and the date on which he gave him a copy of the by-laws of the immovable (including any amendments that may have been made).
Article 1057 of the Civil Code of Quebec stipulates that the by-laws of the immovable are enforceable against the lessee or occupant of a private portion, as soon as a copy of the by-law is given to him by the co-owner or, failing that, by the syndicate. Once the by-laws of the immovable have been communicated to the tenant or occupant, the latter is required to comply with them in full. If he does not do so, a co-owner or a syndicate cannot, in principle, reproach the tenant or occupant for not respecting its content.
Sub-lessee
It sometimes happens that the lessee of an apartment in a co-ownership sub-leases it to third parties. If this occurs, he will have to satisfy certain obligations towards the co-owner-lessor. In such circumstances, he must absolutely:
The co-owner-lessor cannot refuse, without a serious reason, this sublease, even if a clause in the lease provides otherwise. If he wishes to oppose it, the lessor will be required to inform the lessee - within fifteen days of receipt of the notice previously sent to him - stating the reasons justifying the denial of this right. He could for instance invoke that the repetitious leasing of an apartment to tourists is in breach of the destination of the dwelling, as article 1856 of the Civil Code of Québec states: "Neither the lessor nor the lessee may change the form or destination of the leased property during the term of the lease.".
Diversion of residential destination of premises to other purposes
Some decisions of the Tribunal administratif du logement have fixed limitations to and even sanctioned the use of Airbnb. It was thus recognized that:
WHAT YOU SHOULD KNOW! Article 1894 of Civil code of Quebec requires the lessor, before signing the lease, to give the lessee, a copy of the by-laws of the immovable concerning the rules governing the enjoyment, use and maintenance of the dwellings and common portions. This obligation of the lessor should be transposed in the ongoing management of the co-ownership, by communicating to the syndicate a document proving that a copy of the by-laws of the immovable was given to all tenants and ultimately to any sublessee.
WHAT TO KEEP IN MIND : When the destination of the immovable is strictly residential, it is the owner-lessor responsibility to object to an Airbnb type sublease, on the grounds that it violates the destination of the immovable and the declaration of co-ownership .If he does not do it in the delay, he will be deemed to have consented to this sublease.
WARNING! Even if they lease their apartment only a few weeks per year, co-owners who do so, generally partake in a commercial activity. Allowing tourists to stay in a furnished unit against remuneration, and to provide them with amenities (such as towels and linen), is part and parcel of a hotel type operation.
Back to the mega-factsheet Airbnb Type Rental
