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Legal Ease: How is a private residence defined?

In 2011, there were changes to the Quebec Civil Code with regard to leases for seniors’ residences that have affected senior tenants. These changes apply to leases entered into after November 30, 2011, and some changes have resulted in a certain amount of confusion.

Some of the questions asked refer to what constitutes a seniors’ residence, what are the legal obligations of such a residence, how are the lease and its obligatory annex related and how they are to be interpreted, how does one complain and who has the right to complain. The Régie du logement has issued some rulings on these questions.

A private residence for seniors is defined by the Health and Social Services Act as all or part of a building occupied by seniors over the age of 65 where the owner offers, besides lodging, at least two of the following services: meals, nursing, personal assistance, domestic aid, security and leisure activities. These services can be included in the rent or paid for separately.

In cases where a tenant can no longer occupy his home because of a handicap or, in the case of a senior, where he is permanently admitted to a residential and long-term care centre or to a private seniors’ residence where the nursing care and personal assistance services required by his state of health are provided, or to any other lodging facility regardless of its name, where such care and services are provided, he may terminate his lease with a two-month notice.

The law defines “nursing care” as care that professional nurses and nursing assistants or others are authorized by law to exercise.

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

If the new residence or the particular services do not fall within the definitions set out by the law, the landlord can refuse to honour the two-month notice provision and the tenant who has signed a lease with a residence may be stuck with a lease for two different premises.

The two-month notice sent to the landlord by the tenant must be accompanied by a certificate from an authorized person stating that the conditions requiring admission to a residence have been met.

The Régie du logement rendered a judgment in January involving the two-month notice provision. The tenant gave his landlord notice, which the landlord refused on the ground that the residence to which the tenant was going was a private residence for seniors that did not fall within the definition provided by the Quebec Civil Code. The Régie had to decide whether the residence did fall within the definition of the code and whether the condition of the tenant required the services provided.

The tenant had provided a detailed medical report from his doctor stating he had diabetes with visual complications and that one foot was paralyzed. His state of health made it difficult for him to go out. The doctor said the tenant’s state of health required that he be housed in a residence that offered nursing services and had personal assistance services available. The doctor also listed some of the required services that would protect his patient, prevent his isolation and enhance his quality of life.

The Régie decided that the nursing and personal services offered fell within the legal definition and qualified the residence as a seniors residence. It also found that although the tenant had full capacity and was therefore autonomous, his age and health problems meant he required certain services to maintain his quality of life.

It went on to say that when we speak of someone’s health, we must take into account not only his physical condition but his mental health. The fact that the tenant would be able to meet with other people and have a social life without having to go out would help both his physical and mental health and help him maintain quality of life. His notice to the landlord was valid and his lease was canceled.

What we learn from this case is that the Régie will look carefully at the services provided by the residence and at the needs of the tenant. Most interesting is that the mental health and quality of life of the resident were included in those needs.

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