General Rules for All Leases

Overview

The general rules in arts. 1851–1891 of the Civil Code of Quebec (Code civil du Québec, or CCQ) govern leases of movable and immovable property. Their application depends on the contract and on any special regime. Most rules can be modified in a commercial lease, subject to public order and good faith. For dwellings, arts. 1892–2000 supplement or override the general rules, and art. 1893 makes specified protections mandatory. The following discussion therefore distinguishes the general rules from residential exceptions.

Learning Objectives

• Identify the principal obligations that the CCQ imposes on the lessor and the lessee under the general lease regime.
• Distinguish between the guarantee against disturbances of right (troubles de droit) and disturbances of fact (troubles de fait), and explain the different remedies available.
• Explain the rules governing delivery, peaceful enjoyment, repairs, and the prohibition on changing the form or destination of the leased property.

Obligations of the Lessor

The lessor's core obligation is to provide the lessee with enjoyment of the leased property. The CCQ breaks this down into several specific duties: delivery, guaranteeing peaceful enjoyment, guaranteeing fitness for use, making necessary repairs, and refraining from changing the form or destination of the property (art. 1854, 1856, 1864 CCQ).

Delivery of the Leased Property

Delivery (delivrance) is of the essence of the lease contract (art. 1854, al. 1 CCQ). The lessor must place the property at the lessee's disposal with all its accessories and services, at the agreed date. For an immovable, delivery typically occurs through the handing over of keys; for a movable, by physical remise of the thing.

The property must be delivered in good repair of every kind. Under art. 1854, fitness for the agreed use also extends to defects that arise during the term. In a non-residential lease, an acceptance of the property in its existing condition may modify the delivery obligation, but its precise scope and the limits of public order must be examined. JurisClasseur, fasc. 20, para. 23, distinguishes such a clause from an agreement that would leave the property wholly unusable. In residential leasing, art. 1893 expressly protects art. 1854 para. 2; art. 1910 also requires delivery and maintenance in habitable condition.

Both jurisprudence and doctrine treat the delivery obligation as an obligation of result (obligation de resultat). The simple finding that the result was not achieved gives rise to a presumption of fault on the part of the lessor. Proof of diligence is insufficient: the lessor must establish an applicable exonerating cause, such as force majeure under art. 1470 CCQ or non-performance attributable to the lessee's act. A third party's involvement alone does not establish a defence. An external cause invoked as force majeure must be unforeseeable and irresistible (JurisClasseur, Obligations, fasc. 1, paras. 40 and 43; Contrats nommés I, fasc. 20, paras. 4, 7 and 12–14).

Where two leases cover the same property and period, priority ordinarily follows the earlier lease if neither lessee has taken possession. Delivery to a competing lessee in good faith ordinarily prevents the first lessee from obtaining eviction or forced delivery, because the lease confers a personal right. Resiliation and damages against the lessor remain available where their conditions are met. A competing lessee's bad faith requires separate analysis (JurisClasseur, fasc. 20, paras. 12–14).

Peaceful Enjoyment During the Lease

The lessor must provide peaceful enjoyment (jouissance paisible) throughout the term (art. 1854 CCQ). The duty normally has the intensity of an obligation of result. The lessor answers for its own acts and those of persons carrying out its contractual obligations. Third-party disturbances and urgent repairs are governed by specific rules; they do not create a blanket exemption. Force majeure may excuse damages for impossible performance without entitling the lessor to the corresponding rent under the ordinary allocation of risk (arts. 1693–1694 CCQ). A commercial lease may alter that allocation within legal limits (JurisClasseur, fasc. 20, paras. 28–39, 90 and 94–99).

Guarantee Against Disturbances of Right

A disturbance of right (trouble de droit) arises when a third party exercises or asserts a right in the leased property that actually impairs enjoyment (art. 1858 CCQ). A merely hypothetical threat is insufficient; a prior judgment is not a universal prerequisite. Certain public-law obstacles, including zoning restrictions affecting the agreed use, may also qualify. JurisClasseur, fasc. 20, paras. 36–37, distinguishes those obstacles from generally applicable COVID-19 activity restrictions, discussing Lechter (Montreal Professional Building) c. Keurig Canada inc., 2022 QCCS 1649.

This is a warranty obligation: the lessor cannot ordinarily answer it merely by proving an absence of fault. The lessee must first notify the lessor of the disturbance (art. 1858). Rent reduction, resiliation and damages remain subject to their own requirements under art. 1863, and to any valid commercial stipulations.

Guarantee Against Disturbances of Fact

For a disturbance of fact (trouble de fait), the identity of the person responsible determines the applicable obligations and remedies.

Third party who is not another lessee. Article 1859 generally excludes damages against the lessor for an independent third party’s disturbance, while preserving other remedies, including rent reduction or resiliation where their conditions are met. This does not immunize the lessor for its own fault or for persons performing its contractual obligations (JurisClasseur, fasc. 20, paras. 94–96).

Another lessee of the same property. Under art. 1861, the aggrieved lessee may obtain rent reduction or resiliation where the disturbance is reported to the common lessor and persists. The lessor may also owe damages, unless it proves prudent and diligent conduct. Ordinary neighbourhood inconveniences do not suffice. An isolated, unforeseeable incident generally does not establish the lessor’s liability under this continuing-disturbance rule (JurisClasseur, fasc. 20, paras. 97–99).

Guarantee as to Use

The lessor must guarantee that the property can serve the use for which it is leased and maintain it for that purpose throughout the term (art. 1854, al. 2 CCQ). This covers both apparent and latent defects and applies regardless of the lessor's knowledge. A regulatory defect preventing the agreed use may engage this warranty; the agreed allocation of permit and compliance obligations must first be examined. In non-residential leases, the parties may contractually limit this guarantee; in residential leases, art. 1893 CCQ prevents such limitations.

Repairs to the Leased Property

The lessor must make all necessary repairs during the lease, excluding certain minor maintenance repairs that fall to the lessee (art. 1864 CCQ). Doctrine distinguishes between repairing what is damaged and rebuilding what is destroyed: where force majeure has destroyed the property, the theory of risks (theorie des risques) governs rather than the repair obligation.

Worked Example: Urgent Roof Infiltration and Lessee Self-Help Repairs

Factual Scenario

Fictional teaching example. Atelier Graphique Inc. leased 3,500 square feet of commercial loft space from Gestion Immobiliere Mont-Royal under a five-year commercial lease for $6,500 per month to operate a high-precision digital printing business. In late November, torrential autumn rain caused major water infiltration through a severely deteriorated flat roof membrane directly above Atelier Graphique's primary $280,000 digital press.

Atelier Graphique immediately telephoned the building manager, sent an emergency email with photographic evidence, and served a formal demand (mise en demeure) declaring that unless emergency roof waterproofing commenced within 24 hours, irreparable damage to equipment would ensue (arts. 1854 and 1864 CCQ). Mont-Royal failed to deploy any roofing contractor or respond over the subsequent 48 hours while water pooled on the studio floor. Facing imminent catastrophe, Atelier Graphique engaged Couvreurs Industriels du Nord to perform urgent temporary membrane waterproofing and flashing repairs at a reasonable commercial cost of $13,200. Atelier Graphique provided Mont-Royal with detailed contractor invoices and notified Mont-Royal that it was withholding two monthly rents of $6,500 and $200 from a third instalment pursuant to art. 1868 CCQ. Mont-Royal served a notice of lease cancellation and sued for eviction and unpaid rent, arguing that the lease strictly prohibited rent withholding and self-performed landlord repairs.

Prohibition on Changing Form or Destination

Neither the lessor nor the lessee may change the form or destination (destination) of the leased property during the lease (art. 1856 CCQ). A change of form occurs where a transformation diminishes the lessee's enjoyment, such as reducing the leased area. A change of destination arises where the rental environment ceases to correspond to what existed at the time of contracting. The prohibition extends to the immediate surroundings of the property.

Rights of Visit and Examination

The lessor may reasonably inspect the property, carry out work and, for an immovable, show it to prospective tenants or purchasers (art. 1857 CCQ). For reletting a fixed-term immovable lease, art. 1885 requires visits and signs during the final three months, or final month if the lease is shorter than one year. For an indeterminate immovable lease, that duty begins with notice of termination. These periods concern reletting, not every inspection or purchaser’s visit. Dwellings have additional rules on notices and access (arts. 1930–1935 CCQ).

Obligations of the Lessee

Payment of Rent

The lessee must pay the rent (loyer) at the agreed times and in the agreed manner (art. 1855 CCQ). Without rent, the contract is not a lease. Absent contrary agreement, rent is querable at the lessee's domicile (art. 1566 CCQ), though in practice it is typically portable and paid by pre-authorized debits. Where multiple lessees are bound, each ordinarily owes a share of the rent. An express indivisibility clause, or solidarity stipulated by the parties or provided by law, can require payment of the whole (arts. 1519, 1520 and 1525 CCQ). Solidarity is presumed among debtors who contract for the service or operation of an enterprise. Under art. 397, a spouse who takes a lease for the family's current needs also binds the other spouse for the whole rent if they are not separated from bed and board, unless that other spouse had previously informed the lessor of a wish not to be bound (JurisClasseur, fasc. 21, para. 2).

Prudent and Diligent Use

The lessee must use the property prudently and diligently (art. 1855 CCQ). A lease does not invariably require uninterrupted occupation, but the agreed destination and business-operation clauses may require actual operation. Whether non-operation breaches the lease depends on its wording and purpose. Resiliation also requires the applicable substantive and notice conditions; it cannot be inferred from an empty commercial unit alone (JurisClasseur, fasc. 21, paras. 17–18 and 29; fasc. 23, paras. 23–27).

Notice of Defects and Loss of the Property

The lessee must notify the lessor within a reasonable time of any substantial defect or deterioration (art. 1866 CCQ), allowing the lessor to make repairs before damage worsens. Failure to give notice may reduce or eliminate the lessor's liability and may expose the lessee to liability for the lessor's resulting losses. Notice is unnecessary where the lessor already knows of the defect or is its author.

Under art. 1862, the lessee is liable for loss of the leased property unless it proves that the loss was not due to its fault or that of persons it allowed to use or access the property. The acts of an invited person are therefore not automatically an exonerating third-party cause. For loss of an immovable by fire, the lessor must prove that the loss was caused by the fault of the lessee or of those persons. The lessee’s liability for an immovable can extend to the full injury caused (JurisClasseur, fasc. 20, para. 24; fasc. 21, paras. 30–31).

Minor Maintenance Repairs

Under art. 1864, minor maintenance repairs are the lessee’s responsibility unless they result from age or force majeure. Their classification depends on the nature of the work and the circumstances; small upkeep jobs differ from replacement of a deteriorated structural element. Commercial parties may alter the allocation by agreement (JurisClasseur, fasc. 21, paras. 19–20; fasc. 20, paras. 73–77 and 86–89).

Return of the Property at End of Lease

At the end of the lease, the lessee must return the property in the condition in which it was received, except for changes resulting from age, normal wear, or force majeure (art. 1890 CCQ). The lessee must remove any constructions, works, or plantings it has made, provided their removal does not cause deterioration (art. 1891 CCQ). If removal would cause damage, the lessor may retain them by paying their value or compel removal and restoration. Where restoration is impossible, the lessor may keep the improvements without compensation. Non-residential leases frequently negotiate these obligations in advance, given the cost of dismantling specialized fit-outs at lease end.

Obligations Toward Other Lessees

Article 1860 requires each lessee to avoid disturbing other lessees’ normal enjoyment. The lessee answers to both the lessor and affected lessees for its own conduct and that of persons it allows to use or access the property. The lessor may seek resiliation where the legal conditions are met.

The normal inconveniences of neighbours must be distinguished from actionable interference. The notice-and-persistence conditions governing a claim against the common lessor under art. 1861 should not be converted into immunity for a lessee who causes a single wrongful event. A direct claim against the responsible lessee must be assessed separately. The contractual or extra-contractual classification of that direct liability remains debated in doctrine (JurisClasseur, fasc. 21, paras. 29–32; fasc. 20, paras. 97–99).

Sublease and Assignment of Lease

Sublease

A sublease (sous-location) is a lease of all or part of the leased property from the lessee (who becomes sous-locateur) to a sub-lessee (sous-locataire). The original lease remains in force and the principal lessee remains responsible for all lease obligations. Article 1876 allows the sublessee to exercise the principal lessee’s rights and remedies to obtain performance from a defaulting lessor. This does not simply make the sublessee a party to the principal lease or grant every remedy available to that lessee (JurisClasseur, fasc. 22, para. 15).

Where the principal lessee defaults on rent, the lessor may proceed directly against the sub-lessee up to the amount owed under the sublease (art. 1874 CCQ). Because the sub-lessor cannot grant more rights than it possesses, the sublease terminates at the end of the principal lease even if made for a longer period.

If the sublessee's non-performance causes serious injury to the lessor or other lessees or occupants, the lessor may seek resiliation of the sublease under art. 1875. Resiliation of the sublease does not itself terminate the principal lease.

Assignment of Lease

An assignment of lease (cession de bail) transfers all of the lessee's rights and obligations to a third party (the assignee), who becomes the new lessee without the conclusion of a new contract. Unlike a sublease, assignment ordinarily discharges the assigning lessee (cédant) from future obligations, subject to a contrary stipulation outside residential leasing (art. 1873 CCQ), operating in effect as a novation by change of debtor. In non-residential leases, the parties commonly stipulate that the assigning lessee remains solidarily liable with the assignee.

Where it is unclear whether a transaction constitutes a sublease or an assignment, the presumption is in favour of sublease, consistent with the rule that novation is not presumed (art. 1661 CCQ).

Conditions and the Lessor's Right of Refusal

Under the general rule, the lessee must notify the lessor of the proposed sublease or assignment and provide the candidate’s name and address (art. 1870 CCQ). The lessor has 15 days from receipt to communicate a refusal and its reasons; silence constitutes consent (art. 1871). Where the lessor consents, art. 1872 allows reimbursement of reasonable resulting expenses.

The default standard is a serious reason, such as a demonstrated inability to meet the obligations or a proposed use incompatible with the lease. Financial concerns must be assessed in context, including the principal lessee’s continuing liability in a sublease. A desire to impose a new lease is not itself a serious reason under that standard. Transfer without the required notice is irregular; exceptional judicial relief where no serious prejudice occurred is not permission to bypass notice.

For commercial leases, read the clause and the jurisprudence together. JurisClasseur, fasc. 22, para. 29, records a debate about the imperative character of art. 1871 and distinguishes clauses reserving consent, arbitrary discretion and complete prohibitions. It is inaccurate to declare every restriction automatically void or every refusal clause unrestricted. Good faith and the rules on abusive clauses remain relevant.

For residential assignments notified on or after February 21, 2024, the notice must also give the proposed assignment date. Article 1978.2 permits refusal for a reason other than a serious reason; that refusal terminates the existing lease on the date specified in the notice. This special mechanism does not replace the general subletting rule. See TAL guidance on assignment and subletting and arts. 1978.1–1978.2 CCQ.

Worked Example: Commercial Lease Assignment and Serious Reason for Refusal

Factual Scenario

Fictional teaching example. Boutique Gourmande Ltee operated a specialty European delicatessen and cheese market in a 2,000 square foot retail space in Montreal under a ten-year commercial lease from Placements Immobiliers Viger. With four years remaining on the term, the sole shareholder of Boutique Gourmande decided to retire and concluded an agreement of purchase and sale of the commercial enterprise with Traiteur Veloce Inc., an established catering and prepared gourmet food company owned by two experienced culinary entrepreneurs.

Boutique Gourmande served Placements Viger with formal written notice of the proposed assignment of lease (cession de bail, art. 1870 CCQ), enclosing Traiteur Veloce's corporate profile, three years of certified financial statements demonstrating exceptional profitability, an impeccable commercial credit rating, and personal unconditional guarantees from both shareholder-directors. Placements Viger refused consent within 15 days, asserting two grounds: first, that it preferred to re-acquire the commercial premises to amalgamate them with an adjacent bank branch; and second, that clause 24 of the commercial lease granted the landlord absolute, unfettered discretion to refuse any lease assignment. Boutique Gourmande sought a judicial declaration that the refusal was unjustified and that the lease assignment was valid under art. 1871 CCQ.

Termination of the Lease

Fixed-Term Leases and Renewal

Under the general regime, a fixed-term lease ends at expiry without notice (art. 1877 CCQ), subject to any agreed renewal machinery. Movable leases require express renewal. For immovables, occupation for more than ten days after expiry without the lessor’s opposition can renew the lease for one year, or the shorter original duration, on the same conditions (arts. 1878–1879). Clear opposition prevents tacit renewal; negotiations do so only if they convey that opposition. Under art. 1881, a third-party security does not ordinarily extend to the renewed lease, but its terms must be examined. Dwelling leases instead have statutory renewal and security-of-tenure protections, notably arts. 1936–1937 and 1941; the expiry of their stated term does not itself require the tenant to leave (JurisClasseur, fasc. 23, paras. 5–9).

A party's death does not itself terminate the lease (art. 1884). After the lease has actually ended, the lessor may seek eviction or return of the property under art. 1889.

Indeterminate-Duration Leases

For a non-residential lease of indeterminate duration, either party may give notice under arts. 1877 and 1882. For immovables, the notice period corresponds to the rent-payment interval, capped at three months. For movables, it is ten days. Receipt and the effective termination date must be proved. Residential termination and non-renewal require a separate analysis under the special dwelling rules.

Expropriation and Alienation of the Leased Property

Expropriation. Under art. 1888 CCQ, total expropriation ends the lease when the expropriating authority may take possession under the Act respecting expropriation (Loi concernant l’expropriation), CQLR c. E-25. Partial expropriation can justify rent reduction or resiliation. The authority’s compensation obligations are governed by that statute. It replaced the former E-24 statute on December 29, 2023, subject to transitional rules governing earlier proceedings. See the enacted statute and National Assembly commencement record.

Alienation. A sale or other transfer, or extinction of the lessor’s title, does not itself end the lease (art. 1886). Article 1887 distinguishes three situations:

• An indeterminate lease may be terminated according to the ordinary rules applicable to it.
• For an unpublished fixed-term immovable lease with more than 12 months left at transfer or extinction of title, the acquirer may terminate at the end of those 12 months by giving written notice at least six months beforehand. If 12 months or less remain, this special power does not apply. Registration of the lease before registration of the transfer or title-extinguishing instrument prevents this early termination.
• For a fixed-term movable lease, the statutory notice is one month. The 12-month protection for immovables cannot be transposed to movables.

These are distinct from residential security of tenure under arts. 1936–1937. Registration also does not prevent ordinary termination for a proven breach or create a fixed term where the lease is indeterminate.

Knowledge of an unpublished immovable lease does not replace registration (art. 2963). An acquirer may nonetheless bind itself to respect existing leases or waive the statutory early-termination power. That undertaking must be established from the transfer agreement and circumstances. The tenant’s right to publish cannot validly be waived (art. 2936); registration by notice is available under art. 2999.1. See JurisClasseur, fasc. 23, paras. 15–22, subject to the newer expropriation legislation.

Practice Checklist

• Verify that the lessor delivered the property in good repair and in conformity with its described condition and any pre-leasing publicity.
• Confirm that the lease clearly allocates repair and maintenance responsibilities between lessor and lessee.
• For non-residential leases, review whether the "as is" clause is appropriately limited or whether latent-defect carve-outs are needed.
• Ensure the lessor's guarantee as to use covers the lessee's specific intended activity, including municipal permit requirements.
• Establish a protocol for the lessee's notice obligations regarding defects, deterioration, and disturbances.
• Check any express solidarity or indivisibility clause and any solidarity imposed by law, including the enterprise and family-needs rules.
• Review sublease and assignment provisions: does the lease restrict or expand the default CCQ rules? Are refusal standards defined?
• For fixed-term leases, note the renewal mechanism and whether tacit reconduction can be avoided by timely notice of opposition.
• Verify whether the lease has been published at the Land Register to protect the lessee against alienation of the property.
• On termination, confirm the scope of the lessee's obligation to restore the premises and whether contractual provisions modify art. 1890-1891 CCQ.