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Rental law catches up with the realities of senior care services

March 2012

In November, we discussed how the law of Quebec sometimes created problems in determining those special cases in which a lease could be terminated upon giving three months notice. Problems arose when a person had to leave their home to enter a residence, because the law did not define what constituted a “foyer d’hébergement.”

The law has now spoken and new provisions came into effect on November 30. A residence is now defined in terms of the services it provides and the three-month notice provision has been reduced to two months.

Before November 30, a person could end his lease by giving a three-month notice that he had been “admitted permanently to a residential and long-term care centre (centre d’hebergement) or to a foster home (foyer d’hébergement).”

The problem was that the courts did not have proper guidelines with which to define these institutions, resulting in a certain amount of inconsistency.

Under the new law, a person can end his lease by giving a two-month notice that he has been “permanently admitted to a residential and long-term care centre, to a facility operated by an intermediate resource, to a private seniors’ residence where the nursing care and personal assistance services required by his or her state of health are provided, or to any other lodging facility, regardless of its name, where such care and services are provided.”

Personal assistance services are referred to as “services of a personal nature provided by the lessor to the lessee” and these services are now governed by the special rules contained in the Civil Code of Quebec pertaining to the leases of dwellings.

What is included in these services? The law provides a temporary answer that will remain valid until a new regulation is made under the Health and Social Services Act.

It includes “distribution of medication, invasive care involved in assistance with activities of daily living or administering medication, assistance with and supervision of eating, personal hygiene, dressing, locomotion, transferring in and out of bed or in and out of a chair or a wheelchair, and using the toilet or a commode chair, including encouragement to carry out such activities.”

Also included are the services listed in the form that completes the mandatory lease form required by Quebec law.

This additional form must be signed where the landlord provides special services because of the personal needs of the tenant. As mentioned above, the rights and obligations of landlords and tenants now also apply to the services rendered, including meals, laundry service, nursing and personal care.

One other important aspect of the new law is that, where a new or renewed lease includes services of a personal nature to be provided to the tenant, the landlord is obliged to specify that part of the rent which relates to the cost of such services.

When this lease is terminated, the tenant will only owe money for those services that were actually provided. This means that when a tenant gives his two-month notice but moves out a week later, and his premises have not been leased to another tenant prior to the notice period, he will be responsible for the rent owing for the premises but not for those services which he did not receive following his departure.

This is also true when the lease is cancelled due to death.

As this provision will take effect with regard to leases entered into or renewed after November 30, cases may arise where a two-month notice to cancel is given but the rent specified in the lease does not distinguish between the rental amount and the amount paid for services.

When the issue cannot be resolved, the courts may be called upon to decide.

Hopefully this legislation will do what it is supposed to: provide the rental board with guidelines in deciding cases where a two-month notice to cancel a lease has been given. It should also ease the financial burden on tenants, their heirs and representatives.

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