The Landlord's Warranty against Defects and the Recourses of the Tenant

McGILL LAW JOURNAL

Volume 15

Montreal
1969

Number 3

The Landlord’s Warranty against Defects

and the Recourses of the Tenant

John W. Durnford *

Introduction

A few things are certain: the landlord owes a warranty to the
tenant against defects in the premises which prevent or diminish
their use, and it matters not whether the lessor is aware or ignorant
of the defects. The Civil Code tells us this.’ It is also well established
the landlord is
that the lessor’s warranty is a continuing one –
liable for defects that arise during the whole term of the lease;
this is in contrast to the contract of sale, in which the vendor, in
the absence of an express guarantee extending the warranty, is
only liable for the condition of the object sold at the time of the sale.2
indeed there is
nothing but a series of unsolved problems and a large mass of
conflicting jurisprudence, evidence of a struggle on the part of the
courts to render justice in the cases before them, in which task they
have received all too little guidance from the relevant provisions
of the Code.

There is no certainty about anything else –

The vendor’s warranty against defects is treated in twelve spe-
cific articles.3 They provide, inter alia, that the vendor is liable for
latent defects 4 and not apparent defects, 5 that the buyer has the

* Professor, Faculty of Law, McGifll University.
‘ Article 1614 C.C.
2 See, inter alia, J. W. Durnford, The Landlord’s Obligation to Repair and
the Recourses of the Tenant, (10,66), 44 Can. Bar Rev. 417, at pp. 477-478
(including n. 3).

3 Articles 1506, 11507, 1522-1531 C.C.
4 Article 1522 C.C.
G Article 1529 C.C.

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redhibitory action to cancel the sale or the quanti minoris action
to obtain a reduction in the price,0 and that the vendor will be
liable for damages but only if he knew or was presumed to know
of the defect.7

The landlord’s warranty, on the other hand, is dealt with in

only one article, namely Article 1614:

Le locateur est tenu de la garan-
tie envers le locataire A raison de
tous les vices et d6fauts de la chose
louse qui en empachent ou diminuent
l’usage, soit que le locateur les con-
naisse ou non.

The lessor is obliged to warrant
lessee against all defects and
the
faults
leased, which
prevent or diminish its use, whether
known to the lessor or not.

thing

in

the

This article leaves many questions unanswered. It speaks of
“defects and faults”. Other provisions require the landlord to maintain
the premises, s and the tenant has recourses to force the carrying
out of repairs.9 What is the distinction between a defect or fault,
and a state of disrepair? Is the distinction always practical? These
are distinctions that could be of some importance, since there is a
suggestion that the recourse in the event of there being a defect
is not the same as for a state of disrepair. 1 0

As we have seen, the vendor’s warranty is against “latent”
defects only and “apparent” defects are expressly excluded. The
lessor’s warranty, by contrast, is “against all defects and faults in
the thing leased”.1′ Does this mean that the landlord is liable for
apparent as well as latent defects? Or is the wording of the Code
overridden by the traditional view that the tenant is deemed to have
accepted defects that are apparent and to have agreed to pay a lower
rent accordingly ?

As to the liability for damages caused by a defect in the premises,
Article 1614 C.C. is silent.12 The problem therefore arises as to
whether the same rules as in the title of Sale should apply, by which

0 Article 1526 C.C.
7 Articles 1527 and 1529 C.C.
8 Such as Articles 1612 and .1613 C.C.
9 Article 1641,(1) C.C.
10 See, for example, Price V. Sigma Construction Inc., [1066] C.S. 412 (Mit-

chell, J.).

“Article 1614 C.C.
12ATticle 17,21 C.N. differs:
,I1 est d-a garantie au preneur pour tous les vices ou d6fauts de la chose louse
qui en emp6chent l’usage, quand m~me le bailleur ne les aurait pas connus lors
du bail.

S’il rdsulte de ces vices on d6fauts quelque perte pour le preneur, le bailleur

est tenu de l’indemniser.,

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

363

a knowledge or presumption of knowledge is required.’ 3 As we shall
see, the courts are divided on this issue. Moreover, the issue is
frequently avoided by the use of the delictual recourse, where no
prior knowledge of the -defect on the part of the owner of a building
is required. A subsidiary question is whether there must be a putting
in default of the landlord with respect to a defect if he is to be liable.

I. The Landlord’s Warranty against Defects.

We must now examine in detail what the warranty covers. In
order to do so, we must begin by defining what is meant by “defects
and faults” as set forth in Article 1614 C.C.; we must at the same
time attempt to establish a distinction between defects and a state
of disrepair (since the obligation to maintain is separately treated
in the Code, as seen supra).

1. The meaning of “defects and faults” in Article 1614 C.C.

The words “defect” and “fault”, and “vices” and “d6fauts”
appear to be, in the sense in which they are employed in Article
1614 C.C., synonymous. 14 They consist of flaws or imperfections. 15
Where there is something wrong with the premises, the trouble
may arise from a need for repairs (maintenance) or the presence
of a defect. It is fairly clear that we are faced with a defect in
instances such as the following: an improperly designed heating
system which does not adequately heat the whole of a house,'(
drains that do not drain properly or back up, or are otherwise
defective, 17 the presence of vermin in large quantities, 8 the failure

13Articles 1527 and 1528 C.C.
14 See, for example, The Oxford English Dictionary, Webster, Dictionnaire
Quillet de la langue frangaise. See also, as to the meaning of defect (vice), Tellier
v. Proulx, [1054] C.S. 180 (Batshaw, J.).

15 A building constructed in the normal way is not defective if a tenant hears
sounds made by co-tenants: Benoit v. Smith, (1899), 16 C.S. 591 (Doherty, J.).
16Price v. Sigma Construction Inc., [1966] C.S. 412 (Mitchell, J.). Other
cases on defective heating installations include: Vadboncoeur v. Scott, (1040),
46 R.L. n.s. 35 (Forest, J.) (though the tenant’s action was dismissed because
of his failure to put the landlord in default to remedy the situation); Pilon
v. Saindou, (1020), 58 C.S. 215 (Ct. of R.).

17Chabot v. Paquin, [1965] B.R. 425; Dionne v. Roussel, [,1050] C.S. 82
(Judge Michaud); Rublee v. Fortin, [1950] C.S. 425 (Salvas, J.); Lambert
v. Dame Bourassa, (1927), 33 R.L. n.s. 437 (B. Cousineau, J.); Vyse Sons &
Co. Ltd. v. Stephens, (1018), 24 R.L. n.s. 222 (Ct. of R.); Beauchamp v. Brewster,
(1899), 16 C.S. 268 (Doherty, J.); Benson V. Valli~re, (1894), 6 C.S. 245
(Routhier, J.); Thibault v. Par6, (1894), 3 B.R. 48.

1 Shorter v. Beaufort Realties (1964) Inc., S.C.M. 742,366, December 27,
(Jean, J.)

1968, Mr. Justice B6langer; Truax V. Murphy, [1965] C.S. 436

McGILL LAW JOURNAL

[Vol. 15

to meet the requirements of municipal by-laws, 19 undue noisiness
of a heating system,2 0 unhealthy dampness,2 1 smells, 22 the absence
of screw plugs on top of furnace oil tanks, causing an overflow, 23

(bed bugs –

(cockroaches); Julien v. Maplewood Project Inc., [1963] C.S. 415 (Montpetit, J.)
(silverfish); Lussier v. Sklavounos, [1963] C.S. 225 (Deslauriers, J.)
(cock-
roaches); Mindlin V. Cohen, [1960] C.S. 114 (Trudel, J.) (rats); Thibault V.
(1940), 46 R.L. n.s.
Dumas, [1947] B.R. 59 (fleas); B6langer V. Lemieux,
314 (Verret, J.) (bed bugs); Bousquet v. Ct6, (128), 54 B.R. 436 (bed bugs);
Lemay v. McConomy, (1932), 70 C.S. 531 (Roy, C.J.)
but the
them);
tenant’s action was dismissed on the ground of his having accepted
Vezeau v. Siesdedos, (1926), 32 R.L. n.s. 282 (Archambault, J.) (rats); Dussault
v. The H. & W. Importing Co. Ltd., (1925), 63 C.S. 4 (de Lorimier, J.)
(bed
bugs); Bissonnette V. Girard, (1923), 35 B.R. 40 (rats); Longpr6 v. Wallwork,
(1922), 28 RL. ns. 114 (Ct. of R.) (rats); Foley V. Baker, (1918), 24 R.L. n.s.
185 (Ct. of R.) (bed bugs); Fauteux v. Beauvais, (1916), 49 C.S. 141 (Ct. of R.)
but the tenant lost his case because the rats were not apparently
(rats –
sufficiently numerous to give rise to uninhabitability); Bigonesse v. Bouchard,
(1915), 48 C.S. 406 (Ct. of R.) (rats); Middleton v. Allard, (1907), 1 R.L. n.s.
195 (Ct. of R.) (bugs); Snodgrass v. Newman, (1896), 10 C.S. 433 (Archibald,
(bed bugs). See also Delimal v. Painchaud, [1962] C.S.
J.; conf. by C. of R.)
(purchase of furniture by prospective sub-tenant from
417 (A. Demers, J.)
sub-lessor cancelled because uninhabitability prevented taking of possession).
19 Athanasiou v. Palmina Puliafito Co. Ltd., [19.64] S.C.R. 119; Riel Investment
Corp. v. Kithala, [1964] C.S. 228 (Brossard, J.); Houle v. Desrosiers, [1960]
(MW. Cousineau, J.); Lemcovitch v. Daigneault, [1957] C.S. 178
C.S. 709
(Collins, J.); Greenberg v. Germain, (1941),

’71 B.R. 17.

20 Liquornik v. Turret Construction and Housing Co., [1962] C.S. 423

(A. I.
Smith, J.); Craig v. Brown, [1965] C.S. 274 (Collins, J.); a noisy circulating
pump is included: Rabow v. Labrecque, (1938), 76 C.S. 204 (McDougall, J.).
2′ Mayer v. Pelletier, [1960] C.S. 455. (A. Demers, J.); Fabian V. Therriault,
[1951] R.L. 558 (Jean, J.); Brisebois v. Bertrand, [1944] R.L. 547 (D~cary,
the tenant’s action was dismissed on the ground of the defect being
J.) –
apparent; Moreau v. Gagn6, (1940), 46 R.L. n.s. 370 (Pr6vost, J.) –
but the
tenant’s action was dismissed because of there not being a defect; Chartrand V.
Brunet, (1932), 70 C.S. 142 (Martineau, J.) – but the state of dampness was un-
proved in this case; Masson v. Gratton, (1929), 35 R.L. n.s. 115 (de Lorimier,
J.); Nadeau v. Gratton, (1929), 67 C.S. 63 (de Lorimier, J.); Maillet V. Roy,
(1897), 12 C.S. 375 (Doherty, J.); Peatman v. Lapierre, (1890), 18 R.L. 35
the tenant’s action was dismissed on the ground of the defect
(Tellier, J.) –
being apparent.

22 The Great-West Life Assurance Co. v. Raby, [1960] C.S. 505, at p. 511

(Desmarais, J.); Boudreau v. Marcotte, (1926), S2 R.J. 398 (Archambault, J.) –
the tenant’s action was dismissed since the defect was an apparent one; Beard-
more v. Bellevue Land Co., (1906), 15 B.R. 43; Benson v. Valliare, (1894), 6 C.S.
245 (Routhier, J.); Thibault V. Par6, (1894), 3 B.R. 48; Daigneau V. Levesque,
M.L.R., (1886), 2 B.R. 205.

23 W. H. Thornhill Co. Ltd. v. Avmor Ltd., [1959] C.S. 116 (Perrier, J.).

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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the contamination of water in a well,24 floods, 25 a water pipe which
bursts when it is only four years old,26 the absence of a washer in a
gas pipe leading to a stove, resulting in an explosion,27 a step which
breaks because the wood is unsuitable,28 poisonous weeds, 29 a gallery
or its railing which gives way due to improper construction,30 a
garage included in the lease of a ‘dwelling to which access is un-
reasonably difficult,31 a building that collapses due to defective
construction3 2 or is unsafe on account of not being strong enough
for the purposes for which it was leased, 33 a culvert that collapses
for unknown reasons, 34 badly fitting doors and windows,3 5 a chimney
which does not draw properly,36 a refrigerator in a butcher shop

24 Peters v. Baribeau, [1953] C.S. 451 (Ferland, J.). The failure of the water
supply is a cause for resiliation of the lease even where it was not the landlord’s
fault: McKillop v. Tapley, (1907), 32 C.S. 380 (Ct. of R.); Lemonier V. De
Bellefeuille, (1882), 5 L.N. 426 (JettW, J.).

25 Coutu V. Carozzo, [1948] C.S. 455 (Archambault, J.); Bertrand V. Nogl,
(1904), 10 R.J. 367 (but the tenant’s action was dismissed since the defect was
apparent); Rae v. Phelan, (1898), 13 C.S. 491 (Ct. of R.).

26 Mallette v. Schwartz, [1945] C.S. 212 (A. D6cary, J.). See also Mongeau V.
Sylv’estre, [1944] C.S. 276 (P. Demers, J.); Dodick v. Learmonth, (1933), 54
B.R. 321.

27 Bourgoin v. Sullivan, [1942] B.R. 593.
28 Belbin v. Tarte, [1961] C.S. 234 (A. I. Smith, J.); Richer v. Normandin,
(1940), 78 C.S. 85 (McDougall, J.); Brazeau v. Mourier, (1034), 72 C.S. 503
(Guibault, J.).

29 Bergeron v. Bastarache, (1038), 44 R.L. n.s. 463 (Fortier, J.) (the tenant’s
action was dismissed because of the notoriety of the noxious weed in question
(poison ivy)).

3 0 Guaranteed Pure Milk Co. Ltd. v. Cane, (1933), 54 B.R. 473; Allan v. Fortier,

(1.901), 20 C.S. 50 (Larue, J.); Elliott v. Simmons, M.L.R., (1890), 6 B.R. 368
But where a tenant’s wife throws herself against a railing in order to pass
a dog over to a neighbour she is alone responsible for her death resulting from
the collapse of the railing under the impact: Garidpy V. Jekell, (1932), 70 C.S.
508 (de Lorimier, J.).

31 Morrissette v. Fortier, (1931), 50 B.R. 42.
32 Granger v. Muir, (1.910), 38 C.S. 68 (Lafontaine, J.); Central Agency, Ltd. V.
Les Religieuses de l’H6tel-Dieu de Montreal, (1905), 27 C.S. 281 (Ct. of R.);
Stanton v. Donnelly, (1898), 13 C.S. 306 (Tellier, J.). See also St. Lawrence
Realty Co. Ltd. V. Maryland Casualty Co., (13), 22 B.R. 451.

33 Therrin v. Paquet, (1926), 32 R.L. ns. 389 (Pouliot, J.); Larocque V. Free-
man’s Ltd., (1916), 50 C.S. 231 (Bruneau, J.); Wright v. Galt, (z1883), 6 L.N.
42 (Torrance, J.).

34 Thaddje Brisson, Ltge v. Desbiens, (1924), 37 B.R. 539.
35 Lechien v. Quentier, (1923), 61 C.S. 367 (S6vigny, J.).
36Lair v. Siminovitch, (1914), 20 R.L. n.s. 109; Lair v. Simonovitch, (1914),

45 C.S. 341 (Bruneau, J.).

The tenant must, of course, establish that the failure of the chimney to draw
is due to a defect and not his own fault: Canada Newspaper Syndicate, Ltd. V.
Gardner, (1.907), 32 C.S. 452 (Pagnuelo, J.).

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which is not cool enough due to defective construction, 37 possibly
the absence of a hand-rail on a staircase leading to an upstairs flat,””
the absence of fumigation measures being taken on the departure
of a previous tenant where members of his family had typhoid, 0
the erection of a wall by the lessor which removed part of the light
required by a photography studio. 40

The element that seems to characterize the foregoing examples
is the presence of an imperfection that does not result from a failure
to repair or maintain, but is instead inherent in it due to poor design,
inadequate construction, a bad location, unsuitability for the purpose
for which use was intended, the infringement of municipal by-laws,
and suchlike. It is concerning defects in this sense, presumably, that
Article 1614 C.C. provides that the landlord is obliged in warranty.
We have, on the other hand, the landlord’s obligation to “maintain
the thing in a fit condition for the use for which it has been leased”,41
which involves him in having to make repairs, 42 which obligation is
enforceable by the tenant under Article 1614 (1) C.C. It would seem
that the state of disrepair dealt with by these provisions is distin-
guishable from defects in that, in the former case, we are faced with
an obligation on the part of the landlord to restore to their original
or equivalent condition premises that were originally properly de-
signed and constructed, and satisfactory in all other relevant respects
as well.

From the foregoing distinction between defects and a state of
disrepair results the suggestion that the codifiers had in mind
separate recourses for the two situations, namely that, a condition
of uninhabitability aside, when faced with a state of disrepair a
tenant’s only recourse is to sue for repairs under Article 1641(1)
C.C., 43 whereas where a defect is involved, the tenant’s rights are
to sue for the resiliation of the lease or a reduction in the rent,
depending on the gravity of the defect.44

There is a certain theoretical logic to having a distinction between
a state of disrepair and a defect, with separate recourses for each.

37Desautels v. Prifontaine, (1912), 42 C.S. 401 (Saint-Pierre, J.).
8 Cartier v. Durocher, (102), 22 C.S. 255 (Langelier, J.) (the tenant’s action
was dismissed on the ground of the defect (if it was such) being apparent).

39Laurier v. Turcotte, (1,896), 9 C.S. 86 (Ct. of R.).
4OR6millard v. Cowan, (1880), 6 QJL.R. 305 (Casault, J.).
41 Article 1612 C.C.
42 Article 1613 C.C.
43 See, inter alia, J. W. Durnford, The Landlord’s Obligation to Repair and

the Recourses of the Tenant, (1,966), 44 Can. Bar Rev. 477.

44 See infra, under heading II, 1. The cases of uninhabitability or diminution

of enjoyment, at p. 378, et seq.

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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Practical difficulties arise, however, out of the concept of separate
recourses. It might be, for example, that a tenant who is faced with
a state of disrepair would prefer a reduction in rent instead of having
to sue his landlord to oblige him to repair; the more likely occur-
rence is that the tenant whose premises are affected by a defect would
prefer to have them rectified rather than get a reduction in his rent.
Moreover, in a large number of cases, it will not be clear whether
the tenant is faced with a defect or a state of disrepair. Very little
defining of the concept of “defect” has been done beyond labelling
it a flaw or imperfection. Indeed, the very opposite has occurred,
in that so little distinction has generally been made by the courts
between a defect and a state of disrepair, that very often the latter
is referred to as constituting a defect.

This raises a question of some interest: can it be said that we
are faced with a defect when we have a condition that results from
age or lack of maintenance of premises that were originally well
designed and constructed? For example, a pipe which leaks soon
after its installation is clearly defective; if it only starts to leak
aifter a normal life span of perhaps thirty years, the cause is age.
Similarly, a building which collapses soon after its erection evidently
suffers from a defect; if it collapses many years later, the cause
will probably be lack of maintenance. Can the old pipe and the old
house be said to be affected by defects ? The answer is in the negative
insofar as the manufacturer or builder is concerned.

Is the answer to be given from the point of view of a tenant
who takes possession of an old house different? Is the old pipe which
has served its normal life span and is now leaking to be considered
a defect for him ? In a broad sense, the question can be answered
in the affirmative, for the tenant is faced with a flaw or imperfection.
Nevertheless, is it not true to say that what we are really faced
with is a state of disrepair? The question is not wholly academic –
the tenant’s recourses may differ; moreover, it has been suggested
that a tenant only has a recourse with respect to a defect if
it
prevents the use of the premises or seriously diminishes it, whereas
Article 1613 C.C. provides that the premises must be delivered in
a good state of repair in all respects, so that the most minor type
of repairs must be done.45

In any event, an examination of the jurisprudence discloses that
the courts have often used the word “defect” in the broad sense of
covering conditions that might technically be labelled as states of

45p. B. Mignault, De droit civil canadien, t. 7, (Montreal, 1906), p. 256.

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disrepair,4 6 though, as we shall see, this by no means results in the
application of any general rule by which the tenant would be obliged
to exercise the recourses that have sometimes been considered as
appropriate for defects, as ‘distinct from those to enforce repairs.4 7
It may be that one reason for the loose application of the term
“defect” in the jurisprudence is that, as we shall see later,4 8 the
courts frequently grant recourses against landlords on a delictual
basis in their quality of owner under article 1055 C.C., in the third
paragraph of which the owner of the building is responsible for the
damage caused by its “ruin” whether it result from , want of repairs
or a defect. This provision renders the distinction unnecessary
insofar as many actions are concerned. It is rather ironical at the
same time, however, that this particular article, which is in the
domain of delicts, does niake the distinction between a lack of
maintenance and a defect in construction:

Art. 1055: … Le propridtaire d’un
bftiment est responsable du dom-
mage caus par sa ruine, lorsqu’elle
est arriv6e par suite du difaut d’en-
tretien ou par vice de construction.49

Art. 1055: … The owner of a
building is responsible for the damage
caused by its ruin, where it has hap-
pened from want of repairs or from
an original defect in
its construc-
tion.4 9

Indeed, the English version sharpens the distinction by speaking
of an “original” defect in construction; and while the French version
does not have this additional word, the word “vices” no doubt
embodies the same concept since a “vice de construction”‘5 can only
refer to an original defect.

46 For example: Peate Musical Supplies Ltd. v. Lazarus Realty Corp., [1.957]
R.L. 109 (Montpetit, J.) (toilet washer had “become defective from the daily
and normal use thereof…”); Julien v. Julien, [1.945] B.R. 189; Bois v. Ddcarie,
(1941), 47 R.L. ns. 114 (Forest, J.); Verrier v. Daragon, (1925), 63 C.S. 202
(Archambault, J.); Lair v. Siminovitch, (1914), 20 R.L. n.s..109, Lair v. Simono-
vitch, (1014), 45 C.S. 341 (Bruneau, J.); Mergeay v. Redon, (10140), 16 R.J.
354 (Ct. of R.); Beaudoin v. Dominion Clothing Co., (1908), 34 C.S. 157 (Ct.
of R.); O’Connor v. Flint, (1908), 33 C.S. 491 (Ct. of R.); Schimanski V. Higgins,
(1898), 1 C.S. 348 (Ct. of R.).

There can, of course, be a combination of age and defect, as seen, for example,
in Eusanio v. Thuot, [1047] C.S. 46 (Archambault, J.). This list of cases does
not include those in which a delictual recourse was granted, since Article 1,055
C.C. covers both a want of repairs and defects.

47 See heading II, 1. The cases of uninhabitability or diminution of enjoyment,

infra, at p. 373 et seq.

48 See heading II, 3 The claim for damages, infra, at p. 378 et seq.
4 9 Italics added.
50 Italics added.

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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Thus the Code gives separate treatment, in the title of Lease and
Hire, to defects and the obligation to repair. Many defects are
clearly distinguishable from a state of disrepair, but in numerous
instances the division line is blurred. The courts, for their part, have
tended to be liberal in their use of the word defect, extending it to
include disrepair.

2. Defects giving rise to the warranty.

Once it has been established what is a defect, the next question
to be considered is what defects does the landlord’s warranty under
Article 1614 C.C. cover. It will be recalled that in the title of sale,
the vendor’s warranty is against latent defects only; 51 apparent
defects are excluded. 52 The courts have, with a few exceptions,
interpreted these articles in such a way as to impose quite a heavy
burden on the buyer: he must examine and inspect the object before
buying; if he is not knowledgeable about the sort of thing he is
acquiring, he must engage the services of an expert; any defect
that would have been discovered on a careful examination by a
competent expert will be considered apparent, and consequently one
which the vendor’s warranty would not cover. The requirement for
an expert is not spelled out in the Code; it goes a long way back,
however, at least to Pothier, and appears to be based on the propo-
sition that a prudent man will secure the services of an expert in
fields where he is ignorant, and that the failure to do so will
constitute negligence. This reasoning renders unnecessary the spe-
cific mention of an expert in Article 1522 C.C. 53

What about the contract of Lease? Article 1614 C.C. renders the
lessor liable for “all defects and faults” (“tous les vices et d6fauts”) .54
It is to be noted that not only is the word “all” added (it is absent
from Article 1522 C.C. concerning the vendor’s warranty), but in
addition no distinction is made between “apparent” and “latent”
defects. It might then be concluded that the article means what it
says on the face of it, namely that the landlord is responsible for
every defect affecting the premises.

51 Article 1522 C.C.
52 Article 1523 C.C.
53 See, inter alia, J. W. Durnford, What is an Apparent Defect in the Contract
of Sale?, (1964), 10 McGill L.J. 60; J. J. Gow, A Comment on the Warranty in
Sale against Latent Defects, (1964), 10 McGill L.J. 243; J. W. Durnford, Ap-
parent Defects in Sale Revisited, (1,964), 10 McGill L.J. 341; J. J. Gow, A
Further Comment on Warranty in Sale, (1965), 11 McGill L.J. 35.

54 Article 1614 C.C.

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[Vol. 15

Things are seldom that simple, however. It has been argued that
because the title of Lease and Hire contains only Article 1614 C.0.
on the subject of the landlord’s warranty against defects, we should
turn to the considerably more extensive rules of the equivalent
warranty in the title of Sale.51 This proposition was formerly sup-
ported on ‘a number of occasions (though not always in connection
with this particular problem).56

Is the foregoing proposition a sound one? It is respectfully
submitted that a comparison of the objectives of the two contracts
discloses that in many respects it is not. Sale transfers ownership;
the seller is liable only for defects existing at the time of the sale
(saving the existence of an express guarantee providing otherwise) ;
the buyer cannot turn to his seller with respect to defects that sub-
sequently arise. There is therefore some logic in requiring a buyer
to ensure that the object he buys is not too obviously defective, and
to require him to take his redhibitory action with reasonable dili-
gence.57

Lease, in contrast, does not transfer ownership; the premises
continue to be the property of the landlord and the tenant is not
acquiring them; instead, he is being granted the right to receive
the temporary enjoyment of them, 58 and this during the whole term
of the lease; part of the obligation to furnish enjoyment is to
maintain the premises and to warrant against defects that may arise
at any time. The tenant is therefore entitled to look to the landlord
in the event of defects.

There is, therefore, no reason to require a rigorous examination
of the premises by a prospective tenant before he leases. Indeed, no
authority seems to have gone so far as to require him to engage
an expert. On the other hand, there is a respectable body of authority
excluding the warranty where the defects were or should have been

55 Articles 1522 et seq. C.C.
56 p. B. Mignault, Le droit civil canadien, t. 7, (Montreal, .1906), pp. 257-258;
Mallette v. Schwartz, [1045] C.S. 212 (A. D~cary, J.); Brisebois V. Bertrand,
[10443 R.L. 547 (D16cary, J.); Rae v. Phelan, (11898), 18 C.S. 491 (Ct. of R.);
Benson V. Vallisre, (1894), 6 C.S. 245 (Routhier, J.).

57 Article 1530 C.C.
5SArticle 1601 C.C.

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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apparent to the tenant himself. 59 Defects have nonetheless been sub-
jected to the warranty even where they were apparent. 60

There are two added elements of confusion here. One is that
the relevance of the apparency of the defects may vary depending
on whether the tenant is seeking damages or not; the other is that
the rules that apply when a delictual recourse is being invoked
are different. These two elements will be dealt with when the tenant’s
recourses are being discussed.

What is to be the solution concerning the problem of when a
defect is to be considered apparent? The judgments dismissing
recourses of tenants on the ground of apparency all relate to defects
that were blatantly obvious. 61 Perhaps this is the key to finding a

59 L. Faribault, Traiti de droit civil du Quebec, t. 12, (Montreal, 1951), p. 95;
Mignault, op. cit., t. 7, p. 258; Snow’s Landlord and tenant in the Province of
Quebec, 3rd ed., L. C. Carroll ed., (Montreal, 1934), pp. 13, 126, 165, 169, 1Wfl, 174;
Bertalan v. Huels, [1968] B.R. 715; Fortier v. Leclerc, [1967] B.R. 930; Riel
Investment Corp. v. Kithala, [1964] C.S. 228 (Brossard, J.); Tondreau V. Cana-
dian National Railway Co., [1964] C.S. 606 (Larouche, J.); Bergeron V. Basta-.
racke, (1938), 44 R.L. n.s. 463 (Fortier, J.); Boudreau v. Marcotte, (1026), 32
R.J. 398 (Archambault, J.); Verrier v. Daragon, (1925), 63 C.S. 202 (Archam-
bault, J.); Lefebvre v. Dufresne, (1925), 31 R.L. n.s. 394 (Bruneau, J.); Ville-
court V. Blais, (1918), 53 C.S. 115 (Ct. of R.); O’Connor v. Flint, (1008), 33 C.S.
491 (Ct. of R.); Rivard v. Pelchat, (1905), 28 C.S. 8 (Tellier, J.); Bertrand V.
Noil, (1.904), 10 R.J. 367; Cartier v. Durocher, (1902), 22 CS. 255 (Langelier,
J.; conf. Ct. of R.); Beauchamp v. Brewster, (1889), 16 C.S. 268 (Doherty, J.)
(here the tenant had knowledge of the defect at the time of entering into the
lease); Peatman v. Lapierre, (1890), 18 R.L. 35 (Tellier, J.).

G0 Eusanio V. Thuot, [1.947] C.S. 46 (Archambault, J.); Greenberg v. Germain,
(1941), 71 B.R. 17. See also Guaranteed Pure Milk Co. Ltd. v. Cane, (1933),
54 B.R. 473; Lair v. Siminovitch, (1914), 20 R.L. n.s. 109, Lair v. Simonovitch,
(1914), 45 C.S. 341 (Bruneau, J.).

61 In Bertalan v. Huels, basement premises, which were four feet below the
level of a street at the base of the Northern slope of Mount Royal and were
unprotected by a wall, were flooded; In Dame Fortier v. Leclerc, where a 19
month old child fell through the railing on an outside staircase, the fact that
he was able to go through below the stairs and the horizontal middle railing
was described by the Court of Appeal as hazardous for young children but a
normal hazard rather than a defect, and the Court said that “plaintiffs knew
what they were leasing”; in Riel Investment Corp. v. Kithala, the premises did
not conform with the municipal by-laws in that they did not have two exits;
in Tondreau v. Canadian National Railway Co., the users of a railway freight
car used for transporting minerals had not shut the door properly (it was held
by a stick which got knocked out of place), and the Court said that “il s’agissait
lb d’un vice apparent, d’un vice qui sautait aux yeux”; in Bergeron V. Bastarache,
the lessee of -a country cottage got infected on a beach fronting on the St.
Lawrence River by poison ivy which was notorious in the area; in Boudreau V.
Marcotte, the tenant of a dwelling situated over a Chinese laundry could not

McGILL LAW JOURNAL

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solution. Accordingly, a defect would only be apparent if the tenant
did not discover it -on an ordinary visit of inspection or if it arose
from a factor notorious in the area, such as smells in the locality
of oil refineries, dampness near swamps. Moreover it could be argued
that even an apparent defect would be covered by the lessor’s
warranty if the tenant had good reason to believe that the same
would be rectified.

Thus we see that while Article 1614 C.C. declares that the lessor’s
warranty covers all defects, as opposed to the vendor’s warranty,
which relates only to latent and exoludes apparent defects,0 2
the
courts have nonetheless generally stated that the warranty will not
lie where the defects are apparent (though with a much less rigorous
test of apparency than the one requiring the buyer to engage an
expert which is frequently applied with respect to sale) .3

complain of heat and smell rising from it as he saw it before leasing;
in
Verrier v. Daragon, plaintiff tenant’s child was injured by a fall from a gallery
on which the bars of the railing gave way since they were rotten –
this decision
is perhaps more harsh than the others, unless the rottenness was blatant; the
court relied in part on the declaration in the lease (frequently written off by
judges as a clause de style) that the premises were in good condition and that
the tenant was satisfied therewith, coupled with a month’s silent occupation
which was interpreted as tacit acceptance; in Dame Lefebvre v. Dufresne, the
tenant was aware of the balcony being defective; in Villecourt v. Blais, the
tenant’s action for damages due to flooding of the basement was dismissed since
he had previously been a tenant of the premises and was fully aware of their
defects; in O’Connor v. Flint, the tenant’s claim for damages was dismissed since
it was apparent that the building was in an advanced state of decay; in Rivard v.
Pelchat, the defects were not described; in Bertrand v. Noel, the leased farm
was on the bank of the Richelieu River and court felt that it was evident from
its position that it would be subject to spring floods; moreover, the tenant made
no complaints after the flood which occured during the first spring of his occu-
pancy; in Cartier v. Durocher, the tenant’s fall on the staircase was due to the
absence of a handrail; in Peatman v. Lapierre, the tenant was held not to be
entitled to complain of dampness which he knew was common in that part of
the city due to floods. The references to these cases are given supra, n. 59.

62 Articles 1522 and 1528 C.C.
63 The same problem has arisen with respect to Article 1776 C.C. in the title

of Loan:

Lorsque la chose pratie a de tels
d6fauts qu’elle cause du pr6judice A
celui qui s’en sert, le pr&teur est res-
ponsable s’il connaissait les d6fauts
et n’en a pas averti l’emprunteur.

When the thing lent has defects
which cause injury to the person using
it, the lender is responsible if he knew
the defects and did not make them
known to the borrower.

It is stated by H. Roch and R. Par6, in TraiM de droit civil du Qudbec, t. 13,
(Montreal, 1952), pp. 188-189, that the lender is only liable for damages caused
by the latent defects in the thing loaned.

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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What is the justification for this solution and is it a reasonable
one? The reasoning seems to be that where a tenant leases premises
affected by defects that are apparent, he takes them into consider-
ation in the fixing of the rental and pays less accordingly;6 4 or he
disregards them on the basis that the premises will suit his purposes
despite their existence.65 These are neat theoretical solutions, doubt-
less supported by a measure of abstract logic, which may well be the
answer where the parties are in a position to possess the necessary
flexibility in bargaining. The situation may not allow for this where
there is a shortage of housing, and the low income tenant will
probably not have much of a choice as regards the calibre of the
housing he is able to obtain.

The foregoing does not mean that a tenant should be permitted
to accept premises suffering from obvious defects and then always
be entitled to base a claim on them. While it may be hard to separate
problems of adequate housing and the liability of the landlord for
defects, it would seem that the rectification of the housing situation
as regards the low income group is a problem distinct from what
should be the extent of the landlord’s liability for defects. In other
words, while some landlords may be guilty of leasing substandard
housing to those who are unable to exercise their rights, not all
landlords should necessarily be ‘liable for every defect.

II. The Recourses of the Tenant.

We are here concerned with how a tenant whose premises suffer
from defects may act in the protection of his interests. There are
two principal categories of recourses. The first concerns the lease
itself and the rights and obligations of the parties under it; the
other relates to the claim for damages by the tenant.

1. The cases of uninhabitability or diminution of enjoyment.

Enjoyment being of the essence of the contract of lease, un-
inhabitability gives rise to the right to resiliation. 0 This general rule

64 Beauchamp v. Brewster, (1899), 16 C.S. 268 (Doherty, J.) (the tenant, know-
ing of the defects at the time of entering into the lease, was not granted resilia-
tion of the lease but only a diminution of the rent).

05 Mignault, op. cit., t. 7, p. 258; Faribault, op. cit., .t. 12, p. 95.
00 J. W. Durnford, The Landlord’s Obligation to Repair and the Recourses of
the Tenant, (1966), 44 Can. Bar Rev. 477, at p. 499, and the authorities therein
cited.

McGILL LAW JOURNAL

[Vol. 15

has been applied with respect to defects in particular. “I The tenant
need not await judgment; he may abandon the premises.08 He must,
however, first put the landlord in default to remedy the defect and

67 Truax V. Murphy, [1965] C.S. 436 (Jean, J.); Athanasiou v. Palmina Pulia-
fito Co. Ltd., [1964] S.C.R. 119; Julien v. Maplewood Project Inc., [1963] C.S.
415 (Montpetit, J.); Mayer v. Pelletier, (1960] C.S. 455 (A. Demers, J.); Lem-
covitch v. Daigneault, [1957] C.S. 178 (Collins, J.); Coutu v. Carozzo, [1948)
C.S. 455 (Archambault, J.); Greenberg v. Germain, (1941), 71 B.R. 17; B6langer
v. Lemieux, (1940) 46 R.L. n.s. 314 (Verret, J.); Bell v. L.-J. Beaudoin, Lte,
(1930), 68 C.S. 493 (Archambault, J.); Masson v. Gratton, (1929), 35 R.L. n.s.
115 (de Lorimier, J.); Nadeau v. Gratton, (1929), 67 C.S. 63 (de Lorimier, J.);
Ther’rien v. Paquet, (1926), 32 R.L. n.s. 389 (Pouliot, J.); Miserany v. St-Aubin,
(1925), 63 C.S. 310 (de Lorimier, J.); Baril V. Bonnet, (1924), 66 B.R. 270;
Bissonnette v. Girard, (1.923), 35 B.R. 40; Longpri v. Wallwork, (1,922), 28 R.L.
n.s. 114 (Ct. of R.) (the acceptance by the lessor of the return of the key was
held to constitute an acceptance of the tenant’s abandonment); Leroux V. Marcil,
(.1920), 58 C.S. 511 (Bruneau, J.); Pilon v. Saindou, (1920), 58 C.S. 215 (Ct.
of R.); Lusher v. Foley, (1920), 26 R.L. n.s. 58 (Ct. of R.); Foley v. Baker,
(1918), 24 R.L. n.s. 185 (Ct. of R.); Bigonesse v. Bouchard, (1915), 48 C.S. 406
(Ct. of R.); Lair v. Siminovitch, (1914), 20 R.L. n.s. 109 (Bruneau, 3.); Lair V.
Simonovitch, (1914), 45 C.S. 341 (Bruneau, J.); Middleton v. Allard, (1007), 13
R.L. n.s. 195 (Ct. of R.); Beardmore v. Bellevue Land Co., (1,906), 15 B.R. 43;
Stanton v. Donnelly, (1898), 13 C.S. 306 (Teller, J.); Rae v. Phelan, (1898), 13
C.S. 491 (Ct. of R.); Maillet v. Roy, (1897), 12 C.S. 375 (Doherty, J.); Laurier
v. Turcotte, (1896), 9 C.S. 86 (Ct. of R.); Benson v. Valligre, (.1884), 6 C.S. 245
(Routhier, J.).

68 Shorter v. Beaufort Realties (1964) Inc., S.C.M. 742,366, December 27, 1968,
Mr. Justice B6langer; Julien v. Maplewood Project Inc., [1963] C.S. 415 (Mont-
petit, J.); Lemcovitch v. Daigneault, [1957] C.S. 178 (Collins, J.); Coutu v. Ca-
rozzo, [1948] C.S. 455 (Archambault, J.) (this case absolved the tenant from
the obligation of taking possession of uninhabitable premises); Greenberg V. Ger-
main, (1941), 71 B.R. 17 (by inference); Masson v. Gratton, (1929), 35 R.L. n.s.
15 (de Lorimier, J.); Nadeau v. Gratton, (1929), 67 C.S. 63 (de Lorimier, J.);
Therrien v. Paquet, (1926), 32 R.L. n.s. 389 (Pouliot, J.); Baril v. Bonnet, (1924),
36 B.R. 270; Pilon v. Saindou, (1920), 58 C.S. 215 (Ct. of R.); Lusher v. Foley,
(1920), 26 R.L. n.s. 58 (Ct. of R.); Foley v. Baker, (1918), 24 R.L. n.s. 185
(Ct. of R.) (the tenant was not obliged to take possession of the premises because
of infestation by bedbugs); Middleton v. Allard, (1907), 13 R.L. n.s. 195 (Ct.
of R.); Laurier v. Turcotte, (1896), 9 C.S. 86 (Ct. of R.) (the tenant was not
obliged to take possession of premises previously occupied by a family with
typhoid and which had not been disinfected); Benson v. Valliare, (1894), 6 C.S.
245 (Routhier, J.); Thibault v. Par6, (1894), 3 B.R. 48; Wright v. Galt, (1883),
6 L.N. 42 (Torrance, J.). The tenant must be justified in abandoning: Vadbon-
coeur v. Scott, (1940), 46 R.L. n.s. 35 (Forest, J.); Chartrand v. Brunet, (1932),
70 C.S. 142 (Martineau, J.).

No. 3]

LANDLORD’S WARRANTY AND TENANT’S RECOURSES

375

give him a reasonable time to do so,6 9 unless there is urgency, in
which event he may simply walk outO

Once a tenant has abandoned the premises, what should he do?
The wisest course of action is for him to sue in resiliation of the
lease as soon as practical after leaving. If he fails to -do so, there
is the danger that his landlord may subsequently, after rectifying
the defect, summon him to retake possession, and if the tenant refused
to do so, he might possibly then face an action in damages. His plea
might well be that the premises were uninhabitable and that the
lessor had failed to remedy the situation within the delay given by
the putting in default, or that the lessor, by allowing a certain
period of time to elapse after the tenant had quit the premises, had
tacitly consented to its resiliation. In either event, the tenant is
running -a risk, for he may no longer be able to establish that un-
inhabitability existed at the time he quit the premises, or the court
may hold that the landlord had not given up or lost his right to
the lease.71

Where a tenant is faced with a state of disrepair not amounting
to uninhabitability, his only recourse is to sue for repairs under
Article 1641(1); he may only obtain the resiliation of the lease if
the lessor fails to obey the judgment ordering the repairs.7 2 It would
appear, on the other hand, that where a defect exists, there need
not be uninhabitability for the tenant to obtain the resiliation of the
lease. It suffices if there is a serious ‘diminution of enjoyment for
the tenant to be entitled to sue for a cancellation of the lease (though

69 Lussier v. Sklavounos, [1963] C.S. 225 (Deslauriers, J.); Mayer v. Pelletier,
[.19,60] C.S. 455 (A. Demers, J.); Sauv6 v. Moosbrugger, [.1953] R.L. 31 (Bros-
sard, J.) ; Moreau V. Gagn6, (1940), 46 R.L. n.s. 370 (Pr6vost, J.) ; Vadboncoeur
v. Scott, (1940), 46 R.L. n.s. 35 (Forest, J.); Speller v. Greenshields, (1912),
18 R.L. n.s. 427 (Ct. of R.); Beauchamp v. Brewster, (‘1899), 16 C.S. 268
(Doherty, J.) ; Benson v. Valliare, (1894), 6 C.S. 245 (Routhier, J.) ; Thibault v.
Par6, (1894), 3 B.R. 48. See also the interesting case of Shorter V. Beaufort
Realties (1964) Inc., S.C.M. 742,366, December 27, 1968, Mr. Justice B6langer.

70 Moreau v. Gagn6, (1940), 46 R.L. n.s. 370, at p. 375 (Pr6vost, J.).
71 The situation is the same as that arising where a tenant abandons because
of uninhabitability due to disrepair; a fuller discussion of the problems is to be
found in J. W. Durnford, The Landlord’s Obligation to Repair and the Recourses
of the Tenant, (1966), 44 Can. Bar Rev. 477, at pp. 513 et seq. See also Lusher V.
Foley, (1920), 26 R.L. n.s. 58 (Ct. of R.).

72 J. W. Durnford, The Landlord’s Obligation to Repair and the Recourses of

the Tenant, (1966), 44 Can. Bar Rev. 477, at pp. 505-506.

McGILL LAW JOURNAL

[Vol. 15

it may be risky for him to abandon the premises before judgment
is rendered in ease the court does not maintain the action).73

We must now consider the situation where the defect does not
diminish the enjoyment to the extent of giving rise to a right to
haive the lease resiliated. The first question is one of gravity: it is
to be noted that Article 1614 C.C. only renders the landlord liable
for defects that prevent or diminish the use of the premises. Thus,
defects that merely cause inconvenience do not qualify. This is in
contrast to the situation surrounding repairs – Article 1613 C.C.
requires that the premises be delivered in a good state of repairs
in all respects, and the landlord must make all necessary repairs
during the lease that are not tenant’s repairs.7 4

Where the defect is of sufficient gravity for the tenant to have
a recourse, the question that arises is what the nature of the recourse
should be. In the event of disrepair, the tenant must sue for repairs
and may only obtain the cancellation of the lease if the lessor fails
to carry out the judgment.75 There is little if any debate over this
point because it is provided for specifically by Article 1641 (1) C.C.,
which expressly spells out the remedies available in the event of
repairs being required. No putting in default is required (unlike
the situation where resiliation is being sought). 76 There is no pro-
vision that specifically applies to defects; there is merely the general
recourse in cancellation of the lease set forth in Article 1641(2):
The lessee has a right of action in
the ordinary course of law, or by

Le locataire a droit d’action, suivant
le cour ordinaire de la loi ou par

73 Shorter v. Beaufort Realties (1964) Inc., S.C.M. 742,366, December 2/7, 1968,
Mr. Justice B6langer (abandonment by the tenant was held to be justified);
Price v. Sigma Construction Inc., [1966] C.S. 412 (Mitchell, J.) (abandonment
during the proceedings was held to be justified); Liquornik v. Turret Construction
and Housing Co., [1962] C.S. 423 (A. I. Smith, J.); Great-West Life Assurance
Co. v. Raby, [1960] C.S. 505 (Desmarais, J.) (there were several grounds for
the resiliation of the lease, one of which, smells, constituted a defect); Craig V.
Brown, [1055] C.S. 274 (Collins, J.) (in this case it was pointed out that the
tenant is not obliged to sue for repairs where the trouble is impossible to cure);
76 C.S. 204 (McDougall, J.); Bousquet v. COtt,
Rabow v. Labrecque, (.1938),
(1933), 54 B.R. 436; Tarte V. Sarrazin, (1033), 54 B.R. 99; Leroux v. Marcil,
(1920), 58 C.S. 511 (Bruneau, J.); Rgmillard v. Cowan, (1680), 6 Q.L.R. 305
Casault, J.).

The tenant must, of course, establish that there really is a defect: Verret V.

Bddard, (1029), 35 R.L. n.s. 426 (Pouliot, J.) (the headnote is misleading).

74 Mignault, op. cit., t. 7, p. 256; Brisebois v. Bertrand, [1,944] R.L. 547 (D-

cary, J.).

75Article 1641 (1) C.C.; J. W. Durnford, The Landlord’s Obligation to Repair
and the Recourses of the Tenant, (1966), 44 Can. Bar Rev. 477, at pp. 504-506.

76 Rublee v. Fortin, [1050] C.S. 425 (Salvas, J.).

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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proc~dure sommaire, tel que r6gl6 au
Code de produre civile:

2. Pour r~silier le bail, A dfaut
par le locateur de remplir toute autre
obligation rfsultant du bail, ou 4 lui
impos~e par la loi;

summary proceeding as provided in
the Code of Civil Procedure:

2. To rescind the lease for failure
on the part of the lessor to perform
any other of the obligations arising
from the lease or devolving upon him
by law;

The foregoing provision is certainly applicable where uninhabi-
tability or serious diminution of enjoyment results from the defect.
Rescision of the lease is clearly too drastic, however, for other
situations, and yet the tenant is guaranteed against “all defects …
in the thing leased.., which diminish its use”; 77 and so arises a
state of confusion in the doctrine and jurisprudence. There are two
basic schools of thought. One treats a defect as if it were a state of
disrepair, and applies Article 1641 (1) C.C.78 The other takes a
different view; it sees a parallel between the landlord’s and vendor’s
warranties against defects, and would grant the tenant the red-
hibitory action to annul the lease where there is uninhabitability or
a serious diminution of enjoyment (as seen supra), or a reduction
in rent in the event of a partial diminution 79 even though Article
1641(2) C.C. does not provide for the latter, and Article 1660 C.C.
while setting forth a precedent for a reduction in rent, does not
apply. 0

77 Article 1614 C.C. Italics added.
7 8 Fabian v. Therriault, [1051] R.L. 558 (Jean, J.); Dionne v. Roussel, [1950]
C.S. 92 (Michaud, J.); Rublee v. Fortin, [1950] C.S. 425 (Salvas, J.); Dubreuil v.
Dupras, (.1926), 32 R.L. n.s. 139 (Surveyer, J.); Dagenais v. Gauvreau, (1923),
61 C.S. 447 (Martineau, J.)) (this case was related to an uncompleted house,
and is to be contrasted with Greenberg v. Germain, infra, n. 80); Dufresne v.
Tremblay, (190), 55 C.S. 235 (Ct. of R.); Desautels v. Prdfontaine, (1912),
42 C.S. 401 (Saint-Pierre, J.); B6langer v. de Montigny, (1694), 6 C.S. 523 (Ct.
of R.). A case which illustrates the confusion in this area is Tarte v. Sarrazin,
(19,33), 54 B.R. 99.

70 Mignault, op. cit, t. 7, p. 257; Faribault, op. cit., t. 12, p. 96 (but see also
p. 97); Price V. Sigma Construction Inc., [19.66] C.S. 412 (Mitchell, J.); Peters v.
Baribeau, [1-953] C.S. 451 (Ferland, J.); Mallette v. Schwartz, [.1045] C.S. 212
(A. D~cary, J.); Greenberg v. Germain, (1.941), 7,1 B.R. 17 (in this case the
emphasis was on the tenant’s right to have a lease resiliated on the ground of
the building being incomplete, instead of his being obliged to sue for repairs);
Morrissette v. Fortier, (19K), 50 B.R. 42; Vezeau v. Siesdedos, (1026), 32 R.L.
n.s. 282 (Archambault, J.); Clerk V. Poissant, (1920), 57 C.S. 528 (Ct. of R.);
Masson v. Masson, (1895), 7 C.S. 5 (Doherty, J.).

80 Article 1660 C.C.:
Si, pendant la durde du bail, la
chose est entibrement ddtruite par
force majeure ou cas fortait, ou ex-
propri~e pour cause d’utilit6 publique,

If, during the lease, the thing be
wholly destroyed by irresistible force,
or a fortuitous event, or taken for
purposes of public utility, the lease

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[Vol. 15

It is submitted that neither solution is a good one. To oblige
the tenant to sue for repairs to rectify a ‘defect, or to limit him to
a reduction in the rent, is not realistic. The objective should be to
provide a range of recourses that will best meet the facts of each
individual situation. 81 We shall discuss this later.

One point is clear, however, and that is that the landlord is liable
in warranty with respect to a defect whether he is aware of the
same or not.82 What about knowledge of the ‘defect on the part of
the tenant? It may be that the defect will be considered as an
apparent one for him, thus leaving him without a recourse, unless
he had reasonable cause to believe that the lessor was going to remedy
it. 3 The tenant who is or becomes aware of a defect and does not
complain, may find himself foreclosed from doing so on the ground
that he has tacitly accepted its presence. 84 The courts are, however,
generally loath to close the door on the tenant in this way.85

2. The claim for damages.

Unlike its counterpart in the Code Civil,8 Article 1614 C.C.
does not make any specific mention of the tenant’s claim for damages
caused by a -defect in the premises. This means that Article 1641 (3)
applies :

Le locataire a droit d’action, sui-
vant le cour ordinaire de la loi ou

The lessee has a right of action in
the ordinary course of law, or by

le bail est dissous de plein droit. Si
la chose nest d6truit ou expropr~e
qu’en partie, la locataire peut, suivant
les circonstances, obtenir une diminu-
tion du loyer ou la r~siliation du bail;
mais dans Pun ou l’autre cas, il ne
peut r~clamer des dommages-int6r6ts
du locateur.

is dissolved of course. If the thing
be destroyed or taken in part only,
the lessee may, according to circum-
stances, obtain a reduction of the
rent or the dissolution of the lease;
but in either case he has no claim
for damages against the lessor.

81 See heading III, The need for reform, infra, p. S88 et seq.
82 Article ,.1614 C.C.

83 See heading I, 2, Defects giving rise to the warranty, supra, p. 369 et seq.
84Brisebois v. Bertrand, [1944] RI,. 547 (Dcary, J.); Lemay v. McConomy,
(1932), 70 C.S. 531 (Chief Judge Roy); Verrier v. Daragon, (‘1925), 63 C.S. 202
(Archambault, J.); Bertrand v. Noel, (1904), 10 R.J. 367.

88 See J. W. Durnford, The Landlord’s Obligation to Repair and the Recourses
of the Tenant, (1.966), 44 Can. Bar Rev. 477, at pp. 481-482, and the authorities
therein cited.

80 Art. .1781 C.N.: z I1 est dfi garantie au preneur pour tous les vices ou d6fauts
de la chose lou6e qui en emp8chent l’usage, quand mgme le bailleur no les aurait
pas connus lors du bail.

S’il le r~sulte de ces vices ou d~fauts quelque perte pour le preneur, le bailleur

est tenu de l’indemniser.x,

No. 3]

LANDLORD’S WARRANTY AND TENANT’S RECOURSES

379

par proc~lure sommaire, tel que r6-
g16 au Code de procidure civile:

summary proceeding as provided in
the Code of Civil Procedure:

3. To recover damages for viola-
tion of the obligations arising from
the lease, or from the relation of
lessor and lessee.

3. Pour le recouvrement de doam-
mages-inthr~ts h raison d’infraction
aux obligations r~sultant du bail, ou
des rapports entre locateur et loca-
taire.
This article is of a general nature. Thus we are left with no guidance
as to whether the landlord will always be liable for damages, whether
he knew of the defect or not. 7 Some authorities, treating the situation
as analogous to the vendor’s liability for damages caused by the defect
in the thing sold, use criteria similar to those contained in Articles
1527 and 1528 C.C. and hold that the landlord is liable only if the
tenant proves that the defect caused the damage8 8 and that the
lessor knew or should have known of it,9 or had been put in default

87In France, it appears that the courts, interpreting Article 1721 C.N., hold
the lessor to be liable whether he was aware of the defect or not, the sole effect
of knowledge or lack of it being to vary the quantum of damages: Planiol et
Ripert, Traitg pratique de droit civil frangais, 2nd ed., t. 10, (Paris, 1956), no.
540, pp. 745-746.

8sBertrand v. Cymbalista, [1955] C.S. 434, at p. 436

(A. I. Smith, J.);

Pgpin v. Joly, [1044] C.S. 248 (A. D6cary, J.); Parrot v. Laberge, (,1439),
77, C.S. 181 (McDougall, J.). See also Larouche v. Leahy, [1953] B.R. 247;
Cooper v. Holden Co. Ltd., (1915), 48 C.S. 455 (Ct. of R.).

89 W. H. Thornmhill Co. v. Avmor Ltd., [1959] C.S. 116 (Perrier, J.) (claim for
damages to property due to overflow of furnace oil due to absence of two screw
plugs in top of oil tank, which prevented the alarm whistle from operating,
the Court said the lessor had failed to establish the removal of
maintained –
the plugs had not been done by one of its employees); Bertrand v. Cymbalista,
(claim for damages to property dismissed
[1955] C.S. 434 (A. I. Smith, J.)
because tenant had failed to prove the cause of the fire was a defect or that the
lessor knew of it); Thibault v. Dumas, [1947] B.R. 59 (claim for damages by
tenant who had to move out while the premises were fumigated to remove fleas,
dismissed; this is a confused majority decision with two dissents; Barclay, J.,
one of the majority, while holding that a lessor who was ignorant of a defect
would not be liable for damages, would provide for an exception in the case of
a defect inherent in the thing, for which he felt the lessor should always be
liable); Mallette V. Schwartz, [1-945] C.S. 212 (A. Deary, J.) (claim for dam-
ages due to bursting of four year old defective pipe in ceiling dismissed but
cost of repairs granted); Mongeau v. Sylvestre, [1944] C.S. 276 (P. Demers, J.)
(claim for damages arising from burst pipe hidden in wall dismissed); Koscialy,
v. Vineberg, (1933), 71 C.S. 97 (Denis, J.) (claim for injuries caused by falling
window concerning which lessor had been made aware of defect maintained, but
lessor only liable for 50% of damages because of lessee’s knowledge); Lambert V.
Bourassa, (1927), 33 R.L. n.s. 437 (P. Cousineau, J.); Leber v. Patenaude,
(1027), 3 RL. n.s. 42 (Surveyer, J.); Lemieux v. Viau Home Land Co.,
(1926), 64 C.S. 508 (Surveyer, J.) (a case relating to a state of disrepair);
Thadd6e Brisson, Lt6e V. Desbiens, (1924), 37 B.R. 539; Rimillard v. Desive,

McGILL LAW JOURNAL

[Vol. 15

(1922), 28 R.J. 319 (Demers, J.); Albeniti v. Baron, (1921), 27 R.L. n.s. 424 (Ct.
of R.); Clerk v. Poissant, (1920), 57 C.S. 528 (Ct. of R.); Hingston v. Bdnard,
(1916), 25 B.R. 512; (1916) 56 S.C.R. 17; Mergeay v. Redon, (10,10), 16 R.J. 354
(Ct. of R.); Granger v. Muir, (1910), 38 C.S. 68 (Lafontaine, J.) (the lessor was
ignorant of the defect but was held liable as he had supervised the construction
himself; however, the action was based on quasi-delict as well as contract);
Central Agency, Ltd. v. Les Religieuses de L’Hdtel-Dieu de Montrial, (1905),
27 C.S. 281 (Ct. of R.) (the same remarks apply to this case as to the immediately
preceding one, except to add that the defendant-lessors had allowed the original
building specifications to be departed from in certain important particulars);
Beaulieu v. Beaudry, (1,889), 16 C.S. 475 (Taschereau, J.) (claim for damages
due to bursting of pipe by co-tenant dismissed); Schimanski v. Higgins, (1898),
1S C.S. 348 (Ct. of R.) (claim for damages due to fall on defective staircase
dismissed –
lessor not liable for defects arising after lessee takes possession
unless the lessor knows of them); Stanton v. Donnelly, (1898), 1-3 C.S. 306 (Tel-
lier, J.) (claim for damages due to partial collapse of building because of its
not being strong enough to support tenant’s machinery dismissed because lessor
ignorant of defect); Rae v. Phelan, (-1898), 13 C.S. 491 (Ct. of R.) (claim for
damages due to flood from former municipal drains dismissed since owner un-
aware of defect); Maillet V. Roy, (1897), 12 C.S. 375 (Doherty, J.) (claim for
damages due to dampness dismissed since lessor unaware of defect); Masson V.
Masson, (1895), 7 C.S. 5 (Doherty, J.) (claim for damages arising from damp-
ness dismissed because of lessor’s ignorance); Benson V. Valligre, (1894), 6 C.S.
245 (Routhier, J.) (claim for damages due to unhealthiness of new house caused
by defects dismissed because of lessor’s ignorance); Thibault V. Par6, (1894),
3 B.R. 48 (lessor held liable in damages due to defects in drains since aware
of same); Juteau V. Magor, (1892), 2 C.S. 428 (Pagnuelo, J.) (claim for damages
due to bursting of frozen pipe dismissed because (a) not a defect and (b) lessor
not aware); Peatman v. Lapierre, (1890), 18 R.L. 35 (Tellier, J.).

The lessor is liable for damages suffered by a tenant caused by a contractor
doing repairs: Brabant v. Fogel, [1960] C.S. 549 (Collins, J.); and for damages
caused by faulty repairs: Ducros V. Feinstein, [1964] R.L. 424 (Chief Judge
Leduc, now Leduc, J.).

The lessor has no claim against the lessee for damages due to the bursting
of pipes where the freezing is due to defective construction: Davidson V. King,
[1915], 48 C.S. 392 (Ct. of R.).

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

381

to remedy it and had failed to do so.90 Others declare that the lessor
will be liable even if ignorant of the defect.91 A third category does
not even discuss the question of knowledge or ignorance of the
defect.92 There is also a tendency on the part of some to deny the
tenant’s recourse where he was aware or should have been aware

(claim for damages due to flood maintained;

9OBertalan v. Huels, [1968] B.R. 7,15 (an added reason for the dismissal
of the tenant’s claim for damage to property was that the defect was apparent);
Mt. Royal Furniture and T.V. Inc. v. Industrial Glass Co., [1964] C.S. 269
lessee had put
(Perrier, J.)
lessor in default concerning defect); Liquorni V. Turret Construction and
Housing Co., [1962] C.S. 423 (A. 1. Smith, J.) (claim for reduction in rent and
moving expenses due to noisy heating system granted); Bernard v. Cymbalista,
(claim for damage to property dismissed;
[1055] C.S. 434 (A. I. Smith, J.)
tenant had not put lessor in default to rectify pretnted defect alleged to
have caused fire); Julien v. Julien, [1045] B.R. 189 (claim for damages caused
by water pipe freezing dismissed because tenant had failed to repair door
which did not shut properly and allowed cold air to enter and freeze the pipe,
which constituted a tenant’s repair); Koznets V. Labb6, (i1933), 71 C.S. 561
(McDougall, J.); Thaddde Brisson, Ltge v. Desbiens, (1924), 37 BR. 539;
Batt v. Lamarre, (1923), 29 R.L. n.s. 474 (Archer, J.); Griffith V. Litner,
(1922), 28 R.L. n.s. 13 (Ct. of R.); Pilon v. Saindou, (1920), 58 C.S. 215
(Ct. of R.); Desloover v. Mansfield, (1919), 25 R.L. n.s. 155
(Ct. of R.);
Pilon v. Beaudoin, (1914), 20 R.L. n.s. 472 (Fortin, J.); Hingston v. B6nard
(1018), 56 S.C.R. -17; Pelletier v. Boyce, (1902), 2-1 C.S.
(1016), 25 B.R. 51.2;
513 (Andrews, J.); Snodgrass v. Newman, (1896), 10 C.S. 433 (Archibald, J.;
conf. by Ct. of R.); Johnson v. Brunelle, (1886), 14 R.L. 219 (Mathieu, J.);
Acheson v. Poet, (1885), 29 L.C.J. 206 (Caron, J.); Charbonneau V. Duval,
(1885), 13 R.L. 309 (Mathieu, J.); Fitzpatrick V. Darling, (1896), 9 C.S. 247
(Curran, J.). In Daigneau v. Levesque, (1886), 30 L.C.J. 188, the Court of
Appeal said the lessee should have put the lessor in default, but granted the
recourse in damages anyway because the lessee contested the action and denied
that damages had been suffered.

Contra: Mindlin v. Cohen, [1960] C.S. F14 (Judge Trudel)

(claim for loss
of property due to rats maintained). See also Shorter v. Beaufort Realties
(1964) Inc., S.C.M. 742,366, December 27, 1968, Mr. Justice B6langer.

9 1 Lechien v. Quentier, (1923), 61 C.S. 361

(S6vigny, J.); Vyse Sons & Co.
v. Stephens, (1918), 24 R.L. n.s. 222 (Ct. of R.); St-Lawrence Realty Co. V.
Maryland Casualty Co., (1913), 22 B.R. 451; Scanlan v. Holmes, (1879), 2 L.N.
185 (Johnson, J.).

92Chabot V. Paquin, [1965] B.R. 425

(claim for property damage due to
flood caused by defective drain in premises of upstairs co-tenant maintained
under Articles 161.2 and 1053 C.C.); Houle v. Desrosiers, [1960] C.S. 7.09
(M. Cousineau, J.) (claim for damages by tenant due to expulsion by municipal
authorities because building not in conformity with by-laws maintained);
Dussault v. H. & W. Importing Co., (1925), 63 C.S. 4 (de Lorimier, J.); Crowley
v. Silverstone, (1912), 18 R.L. n.s. 87 (Bruneau, J.); Middleton v. Allard,
(1907), 13 R.L. n.s. 105 (Ct. of R.); Beardmore v. Bellevue Land Co., (1906),
15 B.R. 43; Wright v. Galt, (.1883), 6 L.N. 42 (Torrance, J.).

McGILL LAW JOURNAL

[Vol. 15

of the defect that caused the damage,93 or where the damage was
caused by the tenant’s failure to effect a tenant’s repair.9 4

The situation is further complicated by the fact that claims are
frequently based and maintained on a, quasi-delictual basis, and more
particularly on the third paragraph of Article 1055 C.C.:

Le propri6taire d’un bftiment est
responsable du dommage caus6 par sa
ruine, lorsqu’elle est arriv~e par suite
du d~faut d’entretien ou par vice de
construction,

The owner of a building is re-
sponsible for the damage caused by
its ruin, where it has happened from
want of repairs or from an original
defect in its construction.

The quasi-delictual action clearly lies in favour of third persons,9 5
such as visitors to the premises, and may also be invoked by the
tenant’s wife 6 or on behalf of his children, 97 for none of these are

93 Verrier v. Daragon, (1025), 63 C.S. 202 (Archambault, J.); Lefebvre V.
Dufresne, (1025), 31 R.L. n.s. 394 (Bruneau, J.); Villecourt V. Blais, (1918),
53 C.S. 115 (Ct. of R.); Hingston v. B~nard, (1916), 25 B.R. 512; (1918), 56
S.C.R. 17; Barry v. Quinlan, (1918), 24 R.L. n.s. 126 (Ct. of R.); O’Connor V.
Flint, (1.908), 33 C.S. 491 (Ct. of R.); Rivard v. Pelchat, (1905), 28 C.S. 8
(Tellier, J.); Cartier v. Durocher, (1902), 22 C.S. 255 (Langelier, J.; conf. by
Ct. of R.); Mireau v. Allan, (1894), 5 C.S. 433

(de Lorimier, J.).

94Julien v. Julien, [1945] B.R. 189.
95 Lemieux v. S&nical, [1959] B.R. 372; Matin v. Alter, (1936), 61 B.R.
385; Martin v. Labelle, (,1932), 70 C.S. 503 (Mercier, J.); Deguire V. Asch,
(11927), 65 C.S. 400 (P. Demers, J.); Lamontagne v. La Soeidtg de Placement
de Montrial, (1924), 30 R.L. n.s. 18 (Surveyer, J.); Limoges v. Labelle, (1920),
26 R.L. n.s. 181 (Ct. of R.); however, Article 1055 C.C. applies only to an
owner and not to a tenant who allows a third party to use a garage: Barraclough
v. Guay, [1947] C.S. 234 (Fortier, J.). A lessor is not liable for damages caused
to a third party by a tenants use of a building in the absence of fault on
his part: Dupont v. Leaside Engineering Co., (1031), 50 B.R. 91. On the other
hand, where a neighbour suffers damage due to defective drains, it
is the
lessor and not the tenant who is liable: Pagano v. Lipson, (1026), 32 R.L. n.s.
218 (de Lorimier, J.). As between himself and the landlord, it is the tenant
who is liable rather than the lessor for damages caused to third parties by the
leased premises unless the tenant can establish the damage resulted from the
presence of a defect and the absence of negligence on his part: Northeastern
Lunch Go. v. Hutchins, (1023), 35 B.R. 481. Where the tenant maintains a
defective trap-door in the sidewalk in front of the leased premises, he is liable
in damages towards third parties who are injured by it: Feiczewicz v. Valiquette,
(1916), 49 C.S. 481 (McCorkill, J.). Where the tenant calls on the lessor to
install extra heating facilities as provided for in the lease, he must allow
the lessor access to the premises, and the lessor will not be liable to a sub-tenant
for damages due to a default in the heating apparatus: Gordon v. Demitre,
(1914), 46 C.S. 312 (Gu6rin, J.).

96 Camirand-Pineault v. Auger, [1968] C.S. 102 (Mayrand, J.); Beauregard
v. St.-Amand, [1962] C.S. 436 (C5t6, J.)
(it was also held in this case that
the fact that repairs had been done by the tenant did not prejudice the wife’s

No. 3]

LANDLORD’S WARRANTY AND TENANT’S RECOURSES

383

parties to the lease and accordingly, they are not bound by a contract
with the landlord.

The quasi-delictual action is also accepted by our court as to
the tenant himself in claims against his landlord, 98 and this despite

rights); Emond v. Hgritiers de Dame Lavigne, [1947] C.S. 52 (Archambault,
J.); Kennedy v. Charest, [1946] B.R. 289; Dubuc v. Beaulieu, [19421] B.R. 544;
Laterreur v. Lalonde, [1,942] C.S. 253 (Dcary, J.); Richer v. Normandin,
(McDougall, J.); Brazeau v. Mourier, (1934), 72 C.S.
(1940), 78 C.S. 85
503 (Guibault, J.); Guaranteed Pure Milk Co. v. Cane, (1933),
54 B.R. 473;
Guay v. Montpetit, (1925), 31 R.L. n.s. 105 (Lane, J.); Vineberg v. Foster,
(1903), 24 C.S. 258 (Archibald, J.); Tremblay v. Gratton, (1895), 8 C.S.
22 (Ct. of R.); Elliott v. Simmons, M.L.R., (1890), 6 B.R. 368.

97 Girard v. Demers, [1948] R.P. 312 (Boulanger, J.)

(by inference from
the facts, though the specific reason given by the court was that the wording
of the claim caused the action to be based on Articles 1053 and 1055 C.C.
because a lack of maintenance and a state of age of a gallery railing were
invoked); Ouellette v. Martel, (1942), 48 R.L. n.s. 289 (Loranger, J.); Fisher
v. Ouimet, (1937), 75 C.S. 340 (Chase-Casgrain, J.); Laberge v. Skelly, (1931),
37 R.L. n.s. 189 (Surveyer, J.); Collin v. Vadenais, (1928), 44 B.R. 89.

9SKuntz v. Les Immeubles Avignon Inc., [.1968] C.S. 448 (Beaudoin, J.)
(claim for bodily injuries from fall on uneven floor maintained); Bertalan
v. Huels, [1968] B.R. 715 (claim for damage to property by tenant dismissed
liability not established); Penny V.
on ground, inter alia, that delictual
(claim for bodily injuries from
Kaplanski, [19.68] C.S. 270 (Challies, A.C.J.)
fall from balcony the railing of which collapsed maintained); Ouimet v. L’Abb6,
[1965] B.R. 62 (claim for poisoning by gas escaping from central refrigeration
unit maintained under Article .1054 C.C.); Beauregard v. St.-Amand, [1962]
C.S. 436 (Ctd, J.) (Olaim for bodily injuries from collapse of stop maintained);
Belbin v. Tarte, [1961] C.S. 234 (A. I. Smith, J.)
(claim for bodily injuries
resulting from fall on defective staircase maintained); Northwestern National
Insurance Co. v. Marier, [1058] C.S. 565 (Batshaw, J.)
(claim for damages
to property due to backing up of city drains during storm because lessor had
not installed safety valves maintained under Articles 1053 and 1054 C.C.);
Bourgoin v. Sullivan, [1942] B.R. 593 (claim for damages by injured tenant
caused by explosion of cooking gas due to absence of washer in pipe maintained
under Articles 1053 and 1054 C.C.); Dubuc v. Beaulieu, [,1942] BR. 544 (claim
by tenant for injuries suffered by his wife due to collapse of gallery maintained,
with the court specifically holding that the liability under Article 1614 C.C.
does not exclude that under Article 1055 C.C.); Guaranteed Pure Milk Co.
v. Cane, (1933), 54 B.R. 473 (obiter, since claim was by tenant’s wife); Aero
Insurance Co. v. Curtiss-Reid Aircraft Co., (1932), 70 C.S. 211 (P. Demers,
J.), (1033), 55 B.R. 421; Collin v. Vadenais, (1928), 44 B.R. 89 (obiter, since
child involved); Granger v. Muir, (1910), 38 C:S. 68 (Lafontaine, J.); Central
Agency, Ltd. v. Les Religieuses de l’Hdtel-Dieu de Montr6al, (1905), 27 C.S.
281 (Ct. of R.). The tenant has a recourse in damages against a neighbouring
proprietor whose defective walls collapse on the leased premises after a fire:
Evans v. Lemieux, M.L.R., (1889), 5 B.R. 112.

McGILL LAW JOURNAL

(Vol. 15

the existence of a contract between them. There are several reasons
for this. One is the tradition long observed by our courts to the
effect that the existence of a contract will not take away the quasi-
delictual recourses of a party.

There are also a number of concrete advantages insofar as the
tenant is concerned. All he needs to do is prove that he has suffered
damages caused by the “ruin” of a “building” belonging to the
defendant owner (his lessor) and that the “ruin” was due to a
want of maintenance or a defect in construction, and the owner will
then be liable for the damages O unless he is able to establish that
the damage was due to a fortuitous event or force majeure,10 the
act of a third party’ 0′ or of plaintiff himself, 102 which grounds
will rarely lie. 0 3 Moreover, the words “ruin” and “building” have
been liberally interpreted so as to cover relatively minor mishaps,
such as the collapse of a balcony railing or similar event. 0 4 Further-
more, the owner will be liable despite his ignorance of the defect
causing the damage; 05 no putting in default to remedy the defect

09Sdvigny V. Boismenu, [1963] B.R. 323; Brunet v. Borduas, [1957] C.S.
432 (Montpetit, J.) (the action was dismissed because plaintiff failed to prove
the existence of a defect); Wright v. Blanchard, [.1951] C.S. 398 (Smith, J.);
Pepin v. Joly, [1.9443 C.S. 248 (A. D6cary, J.) (claim for damages suffered
by child of tenant dismissed as no defect established); Parrot v. Laberge,
(1939), 77 C.S. 181 (McDougall, J.) (claim dismissed since defect not proved);
Blais v. Lemieux, (1921), 30 B.R. 410; Cooper v. Holden Company, Ltd., (1915),
48 C.S. 455 (Ct. of R.)
(claim dismissed since defect not proved); See also
Larouche v. Leahy, [1958] B.R. 247 (action for damages caused by flood due
to toilet in co-tenant’s premises dismissed as defect not proved).
100 See, for example, Binard v. Hingston, (1918), 56 S.C.R. 17.
101 See, for example, Dodicek v. Learmonth, (1033), 54 B.R. 321 (where damages
were caused by some stranger having drilled a hole in the upstairs drainpipe).
102 See, for example, Garipy v. Jekell, (1.932), 70 C.S. 508 (de Lorimier, J.)
(in which the tenant’s wife threw herself against a balustrade in order to
delivex a dog to a neighbour, and the railing broke).

103 Penny v. Kaplanski, [1968] C.S. 270 (Challies. A.C.J.); Blais v. Lemieux,
(1921), 30 B.R. 410; Camirand-Pineault v. Auger, [1.968] C.S. 102 (Mayrand, J.).
104 Dame Camirand-Pineault v. Auger, [19683 C.S. 102 (Mayrand, J.) ; Penny
V. Kaplanski, [1968] C.S. 270 (Challies, A.C.J.); Laterreur v. Lalonde, [1042]
C.S. 253 (D~cary, J.); Guaranteed Pure Milk Co. V. Cane, (1933), 54 B.R. 473.
1o5 Belbin v. Tarte, [1.961] C.S. 234 (A. I. Smith, J.); Bourgoin V. Sullivan,
[1942] B.R. 593; Richer v. Normandin, (1,940), 78 C.S. 85 (McDougall, J.);
Guaranteed Pure Milk Co. v. Cane, (192), 54 B.R. 473 (the notes of L~tourneau,
J., are interesting in the distinction he draws between the knowledge of a defect
being required by a lessor for him to be liable for damages, whereas an owner
will be even if he is ignorant of the defect. Rivard, J., suggests that the lessor
was deemed to know of the bad condition of the railing, so that he would be
liable even on a contractual basis); Curtis-Reid Aircraft Co. v. Aero Insurance

No. 3]

LANDLORD’S WARRANTY AND TENANT’S RECOURSES

385

is required;106 and the only effect of knowledge of the defect or
carelessness on the part of the tenant or its apparency will be to
reduce the damage award.10 7 Indeed, in relation to claims based on
delict, it has been held that it
is not up to the tenant to inspect
the building and search for defects, but the landlord must do so
from time to time and not await complaints,10 8 and the fact that
a defect is apparent ‘actually seems to confirm the landlord’s lia-
bility. 00 Besides, an exclusion of liability for damages in the lease
will not always prejudice a tenant’s action under Article 1055 C.C.110
is not altogether surprising, in view of the foregoing, that
the plea of Professor Paul-Andr6 Cr6peau, in his article entitled
Des r~gimes contractuel et d6lictuel de responsabilitM civile en droit
civil canadien,”‘ to the effect that where the relations between the

It

Co., (1932), 70 C.S. 211 (P. Demers, J.), (1933), 55 B.R. 421; Collin v. Vadenais,
(1928), 44 B.R. 89; Larocque V. Freeman’s Ltd., (1916), 50 C.S. 231 (Bruneau,
J.); Troude v. Meldrum, (1902), 21 C.S. 75 (Archibald, J.); Allan v. Fortier,
(1901), 20 C.S. 50 (Larue, J.); Tremblay v. Gratton, (1895), 8 C.S. 22 (Ct.
of R.).

O06Bertalan v. Huels, [1968] B.R. 715; Beauregard v. St.-Amand, [1962]
C.S. 436 (Cf t,
J.); Belbin v. Tarte, [1061] C.S. 2a4 (A. I. Smith, J.); Fisher
V. Ouimet, (1937), 75 C.S. 340
(Chase-Casgrain, J.); Brazeau v. Mourier,
(1934), 72 C.S. 503 (Guibault, J.); Collin V. Vadenais, (1028), 44 B.R. 89;
Dame Lamontagne v. La Socigti de Placement de Montrgal, (1924), 30 R.L. n.s.
18 (Surveyer, J.); Beaudoin v. Dominion Clothing Co.,
(1908), 34 C.S. 157
(Ct. of R.); Vineberg v. Foster, (1903), 24 C.S. 258 (Archibald, J.).

107 Penny v. Kaplanski, [1M68] C.S. 270 (Challies, A.C.J.); Kennedy v. Charest,
[1,946] B.R. 289; Koscialyk v. Vineberg, (1933), 71 C.S. 97 (Denis, J.); Guay
V. Montpetit, (1-925),
(Lane, J.); Persichino v. Gratton,
(1022), 60 C.S. 35 (Ct. of R.)
(in this case the lessor was held liable for
damages even though he had advised the tenant of the defects and had them
fixed as soon as possible).

31 R.L. n.s. 105

‘OsCamirand-Pineault v. Auger, [1968] C.S. 102 (Mayrand, J.); Emond v.
HMritiers de Dame Lavigne, [1947] C.S. 52 (Archambault, J.); Bois v. Dicarie,
(1941), 47 R.L. n.s. 114 (Forest, J.); Collin v. Vadenais, (1928), 44 B.R. 89;
Larocque v. Freeman’s Ltd., (1016), 50 C.S. 291
(Bruneau, J.); Troude V.
Meldrum, (‘1902), 21 C.S. 75 (Archibald, J.).

o9 Belbin v. Tarte, [1961] C.S. 234 (A. I. Smith, J.); Laterreur v. Lalonde,

[1942] C.S. 253 (A. Dcary, J.).

110 Penny v. Kaplanski, [1968] C.S. 270 (Challies, A.C.J.); Collin v. Vadenais,
(1928), 44 B.R. 89 (obiter, since a child was involved, but it is interesting
to note that the Court expressed the view that public order was at stake).
A flooding claim under Article 1055 C.C. was barred by an exclusionary
clause in the absence of negligence on the part of the owner in Lion Fastener
Co. v. Gross, [1964] B.R. 475.
Ill (1962), 22 R. du B. 501.

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parties are governed by a contract, they should not be allowed to
invoke a quasi-delictual recourse, should not have been the object
of more general acceptance. 1
lHe is undoubtedly right in his sub-
mission that the contractual and delictual recourses are incompatible.
However, so -long as claims, especially in the realm of bodily injuries,
will lie in the field of quasi-delicts and sometimes not in the field
of contract, the courts will naturally continue to maintain actions
under Articles 1053 and 1055 C.C. despite the presence of a lease
contract.

The answer would probably lie in a fresh interpretation of Article
1614 C.C. on its merits. As we have seen, it is in broad general
terms. There is no requirement that the defects be latent; nor is
knowledge on the part of the ‘landlord of the existence of a defect
stated to be necessary in order for him to be liable for damages
resulting therefrom. It is the courts which, embarrassed by the
breadth and scope of the provisions, have tended to cut them down
by reference to the more detailed and limiting rules of the contract
of sale; then, wishing to maintain claims that would not have been
admitted under the more restrictive rules drawn from the contract
of sale, they relied on the delictual action.

It would appear that Article 1614 C.C. could be given the broad
and liberal interpretation that would cause it to furnish as effective
a recourse as does the delictual one. The justification for the limi-
tations on the vendor’s warranty against defects lies in the fact
that the change of ownership puts the object entirely at the charge
of the purchaser except insofar as it is affected by defects existing
at the time of sale (in the absence of an express guarantee); a
person acquiring a thing should be somewhat on his guard since
it will be his.

In the contract of lease, -on the other hand, the thing is not and
never will be the property of the tenant. He will only be in temporary
possession, and the landlord will have the obligation of furnishing
him enjoyment. There is therefore, a continuing obligation on the
landlord and a right on the part of the tenant to expect its fulfilment.
It would therefore appear logical to give Article 1614 its full effect,
unaffected by the more restrictive rules of sale, a contract of a
different nature.

1121His views have been applied in: J. Duncan Girard V. National Parking
Ltd., S.C.M. 752,&13, December 20, 1968, Mr. Justice Albert Mayrand. An
appeal is presently pending: C.B.R.
(Montreal) 11,844. See also, HStel-Dieu
St-Valier v. Martel, [1968] B.R. 389.

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3. The effect of lease clauses excluding liability.

It is not necessary to read many leases to receive the impression
that -the ‘aim of many of their draftsmen is to reduce to a minimum
the rights of the tenant and consequently the obligations of the
landlord as well. One may sometimes be forgiven for wondering
whether the lessee is left with any of the recourses that the law
would give him.

However, while freedom of contract is still a general principle
of our law, the courts have not idly sat by and allowed tenants
to be stripped of all their rights. Indeed, they have gone much
further than the rule set forth in Article 1019 C.C. to the effect
that a contract is interpreted -against the stipulator.

As to the clause that the tenant declares that he has examined
the premises, has found them to be in good condition, and is satisfied
therewith, the courts have written the same off as a clause de style.
lear, 113 ,and the judgments that
What is meant by this is not quite
apply this appellation to a provision do not define it. However, it
seems that a clause de style (a)
is one that appears regularly in a
certain type of contract, and (b) is disliked by the courts. In any
event it
is usually considered as relating only to the apparent
condition of the premises 1 4 and as not relieving the landlord of his
warranty against defects.”15

l1 36ee Perreau-Charmantier, Petit Dictionnaire de Droit, 2e 6d..

(Paris,
1-957), p. 59. This definition is attributed to Planiol & Ripert. See Planiol &
Ripert, Trait6 3ratique de droit civil frangais, 2e 6d., t. 6, (Paris, 1052), pp.
483-4, no. 37.3 bis. See also Barraine, Dictionnaire de Droit, 3e 6d., (Paris, 1967),
p. 72, which is attributed to Ripert & B61anger. Ripert & B6langer, Trait6 de
droit civil, t.,2, (Paris, 1957), p. 148, no.

,74.

114 Lemcovitch v. Daigeault, [1057] C.S. 178

(Collins, J.); Glifilian v.
Laporte, (1029), 35 R.J. 440 (-Surveyer, J.); Lemieux v. Viau Home Land Co.,
(1926), 64 C.S. 508 (Surveyer, J.).

Such a clause is ineffective where there is a state of uninhabitability; Collin
v. Vadenais, (1928), 44 B.R. 89; Lair v. Siminoviteh, (1914), 20 R.L. ns. 109
(Bruneau, J.). Where the tenant really knows the premises (e.g., from previous
occupancy), he will be bound by his declaration: Leber v. Patenaude, (1927),
33 R.L. n.s. 42 (Surveyer, J.); Marion V. Thgoret, (1925), 31 R;L. n.s. 319
(Surveyer, J.) (the exception of uninhabitability would presumably still apply).
The same may also apply where the tenant remains in occupation for a month
without complaining: Verier v. Daragon, (1925), 63 C.S. 202 (Archambault, J.).
(Challies, A.C.J.); Disautels V.
Pr~fontaine, (1912), 42 C.S. 401 (Saint-Pierre, J.); Allan v. Fortier, (19k),
20 C.S. 50 (Larue, J.).

“15Penny v. Kaplanski, [1968] C.S. 270

This is especially so when the court maintains the action on the basis of a
quasi-delict: Penny v. Kaplanski, [1968] C.S. 270 (Challies, A.C.J.); Lemieux

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While in principle it is valid for a lessor to exclude his obligation
to repair,” 6 this clause will be ineffective where there is unin-
habitability.” 7 A clause relieving the lessor of having to repair is
sometimes enforced as a bar to an action in damages;”Is on other
occasions, it is not, ” 9 especially where the claims is by a third party. 120

III. The Need for Reform.

It is evident that reforms are needed in this field of the landlord’s
both on account of the confused state

warranty against defects –
of the law as it now stands, and in order to prevent injustices.

The Code distinguishes between the warranty against defects, 121
on the one hand, and the lessor’s obligation to repair,12 2 on the
other. This is logical enough, since a state of disrepair and a
defect are two distinguishable conditions. However, while the Code
spells out in Article 1641(1) C.C. how the tenant is to enforce
his rights to have repairs carried out, there is no equivalent pro-

v. Sgnical, [1959] B.R. 317.2 (a third party was involved); Guaranteed Pure
Milk Co. v. Cane, (133), 54 B.R. 473.

A clause obliging a lessee to suffer large repairs without a reduction in the
rent affects only those that become necessary during the lease and not defects
existing at the start of the lease: Masson v. Masson, (1895),
7 C.S. 5
(Doherty, J.).

116 Grondin v. Parent, [1948] C.S. 41 (Chief Judge Roy); Verrier V. Daragon,
(1925), 63 C.S. 202 (Archambault, J.); Marion v. Thorit, (1925), 31 R.L. n.s.
313 (Surveyer, J.); Rivard v. Pelehat, (1005), 28 C.S. 8 (Tellier, J.); Deault
V. Ledoux, (1894), 5 C.S. 293 (Ct. of R.). This clause has been held not to
apply to a state of disrepair existing at the time of the lease: Glifilian v. Laporte,
(1929), S5 R.J. 440 (Surveyer, J.). A clause excluding repairs does not relieve
lessor from warranting that the heating system of the premises is in operating
condition: Frappier v. Perreault, (1924), 62 C.S. 103 (Rinfret, J.).

“7 Grondin V. Parent, [1948] C.S. 41 (Chief Judge Roy); Eusanio v. Thuot,

[1947] C.S. 46 (Archambault, J.).

Perhaps the following case could be included in this category of uninhabitability:
(defective

Ddsautels V. Pr~fontaine, (1910), 42 C.S. 401
refrigerator in butchershop).

(Saint-Pierre, J.)

“5 Mongeau v. Sylvestre, [.1944] C.S. 276 (P. Demers, J.) (flooding damage
due to burst pipe); Marion v. Th~oret, (1925), 31 R.L. n.s. 313 (Surveyer, J.)
(claim resulting from bodily injuries); Brown v. Lamarre, (1916), 25 B.R.
492 (claim for bodily injuries); Maillet v. Roy, (1897), 12 CS. 375 (Doherty, J.).
n9 Bois v. Dgearie, (1941), 47 R.L. n.s. :114 (Forest, J.); St. Lawrence

Realty Co. v. Maryland Casualty Co., (1913), 22 B.R. 451.

120 Marin v. Alter, (1986), 61 B.R. 385.
121 Article 1614 C.C.
122 Article 161S C.C., inter alia.

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vision for defects. This lacuna has resulted, we have seen, in divergent
views: one being that the tenant should sue for repairs to rectify
the defect under Article 1641 (1) C.C., the other being that the
proper recourses are the redhibitory action to vacate the lease where
the defect is a major one and the quanti minoris action to obtain a
reduction in the rent where the defect is a less serious one. A
reduction in the rent may not, however, be as satisfactory to a tenant
as a recourse in rectification of the defect; on the other hand, in
some instances, a tenant may prefer to have a lower rent instead of
having the defect remedied.

Then there is the problem that in many instances there is no
clear indication as to whether the difficulty complained of by the
tenant constitutes a ‘defect or a state of disrepair, with the resulting
danger that he might find his action dismissed because of a finding
that he had formulated his action on the basis of the wrong recourse.
It would seem then, that while it would be appropriate to retain
the separate obligations of the landlord as to repairs and as to the
warranty against defects, the tenant’s recourses with respect to
both should be combined into one provision that would be applicable
to either defects or disrepair. Thus, where premises were affected
by a defect or needed repairs, the tenant could sue to have the lease
cancelled where his enjoyment was seriously affected (after putting
the lessor in default to remedy the situation) ; or, where his enjoy-
ment was merely reduced, sue either to have the necessary repairs
or other rectification effected (either by the lessor himself or by
the lessee at the lessor’s expense), or to obtain a reduction in the
rent, according to the circumstances and in the discretion of the court.
We next consider the claim for damages. We are here faced with
confusion arising out of the custom of the courts of granting claims
based on quasi-delict when the relations between the landlord and
his tenant are governed by their contract. As we saw, the reason
for this is no doubt in part at least due to the fact that the
recourse under quasi-delict is more favourable, because once the
tenant has established that the damage was caused either by a defect
or a want of repairs, the landlord as owner will be liable, whether
he was aware of the defect or not, whereas the majority view is that
the recourse in damages under the contractual warranty against
defects under Article 1614 C.C. lies only where the lessor knew of
the defect or had it brought to his attention.

There is also a certain illogic in having the lessee himself
furnished with a much lesser recourse under his contract of lease
than members of his family or even third parties have under quasi-
delict.

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The appropriate reform would appear to be to broaden the
tenant’s recourses for damages under the lessor’s warranty against
defects. Perhaps the new principle could be that the lessor would
be liable in damages under his warranty even though ignorant of
the defect, subject to his being permitted to plead that the damage
was due to a fortuitous event, force majeure, the act of a third
party, or the fault of the tenant himself. The basis would be that
where both the landlord and the tenant were unaware of the defect
before it caused the ‘damage, both would be innocent parties, hence
the one to bear the burden of the ‘damage should be the owner,
whose thing it is and who is bound to the warranty that it is not
defective. 12 3

It would be for the courts to determine when the defence that
the damages were due to the fault of the tenant himself would lie.
Perhaps it would be applicable where the tenant knew or should
have known of the defect or state of ‘disrepair and had done nothing
to have it remedied, such as putting the landlord in default to rectify
it. Another instance might be where the damage was caused by the
tenant’s failure to carry out tenant’s repairs.

It is to be hoped that an important result of a broadening of
the grounds for a tenant’s recourse for damages under the landlord’s
obligation to warranty against defects would be that the courts
would no longer continue to apply a quasi-delictual recourse to what
is a contractual situation.

Then there is the problem of those lease clauses which purport
to remove all or an important part of the tenant’s rights. While
such clauses have to a great extent been ignored by the courts,
they nonetheless may still have the effect of denying a tenant’s
recourse. While freedom of contract is a principle that still forms
part of our law, it would seem appropriate to invalidate the effect
of such clauses, at least insofar as bodily injuries are concerned.

IV. Conclusion.

The landlord owes a warranty against all defects in the leased
premises, which prevent or diminish their use, whether known to
him or not (Article 1614 C.C.). This provision is deceptive in its

123 t seems that in France the courts have opted for holding the landlord
liable whether he was aware or not of the defect, the only difference being
that in the case of ignorance, the landlord is only liable for the damages that
were or could have been foreseen at the time the lease is entered into, whereas
where he knew of the defect he is liable for all the damages: Planiol et Ripert,
op. cit., t. 10, no. 540, pp. 745-746.

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LANDLORD’S WARRANTY AND TENANT’S RECOURSES

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apparent clarity, for it is too brief and leaves unanswered too many
questions.

Faced with the question as to whether the warranty covers
apparent as well as latent defects, the courts have decided in the
negative, without, however, requiring the tenant to make more than
an ordinary examination of the premises.

As to the fact that the Code has separate provisions for the
landlord’s warranty against defects (Article 1614 C.C.) and his
obligation to repair (inter alia, Article 1613 C.C.), the courts have
tended to allow the -distinction to become blurred. This is due to the
difficulty in many instances of determining whether a situation
involves a defect or a state of disrepair, and to the fact that while
the Code spells out the recourses where repairs are needed (Article
1641 (1)), it does not do so with the same clarity with respect to
defects.

When it comes to the claim for damages caused by a defect,
there is a double confusion. Firstly, the courts have been maintaining
actions by tenants against their landlords based on quasi delict
despite the existence of their contract of lease. Secondly, where the
claim is regarded as being of a contractual nature, the question
arises as to whether there is liability for damages where the landlord
was ignorant of the defects, with the answer being generally in the
negative. Thus, not only have quasi-delictual recourses been allowed
where the relations of the parties were subject to a contract, but
these recourses have been broader because of knowledge of the defect
on the part of the owner under article 1055 C.C. being unnecessary.
There is accordingly a need for reform. The tenant’s recourses
as to defects and states of disrepair should be unified, -and the claim
for damages based on the warranty against defects arising out of
the contract of lease should be rendered more satisfactory, with,
hopefully, a by-product being the eclipse of the quasi-delictual action
insofar as the tenant’s claim damages against his landlord is con-
cerned.