Notice of family residence and sublease or lease assignment
Principle
Family residence1 is another concept that can have an impact on your work. The Civil Code of Québec states that a lessee’s married spouse of civil union partner can invoke the concept of family residence. Thus the spouse whose name does not appear on the lease can send a notice of family residence to the lessor to inform him that the dwelling constitutes a family residence.
Consequences in a sublease or lease assignment situation
Where the dwelling is used as the family residence, any sublease, lease assignment or lease termination requires the non-lessee spouse’s consent.2 Without written consent from the lessee’s spouse, this spouse may apply for the cancellation of the sublease, lease assignment or lease termination.3 However, such consent is not required for a modification to the lease, such as a rent increase.
Where to find the notice of family residence
Unlike the notice of family residence available to the spouse of the owner of an immovable, the notice of family residence for leases is not registered with the Bureau de la publicité des droits.
The spouse must have completed the statement to this effect on the standard lease form of the Tribunal administratif du logement, or must have sent an independent notice to this effect to the lessor.
Thus, only the current lessor of the immovable has this information, which is relevant for any prospective buyer of the immovable.
► DUTIES AND OBLIGATIONS OF THE BROKER
In a transaction where a notice of family residence has been issued, you must:
- complete section D2.6 c) of the form Declarations by the seller of the immovable and provide relevant details under section D15 of the form;
- obtain a copy of the leases on which a mention of family residence appears or a copy of the notice sent to the lessor;
- disclose this information to the buyer.
1 Arts. 403, 408 C.C.Q.
2 Art. 403 (1) C.C.Q.
3 Art. 403 (2) C.C.Q.
