When drafting a commercial lease, building maintenance is an important element for owners who wish to maintain the value of their investment.

The Quebec Civil Code states that the tenant is responsible for small maintenance repairs during the course of the lease. At the end of the lease, the tenant must return the leased premises to the landlord in the same condition as when he moved in, except for any reasonable wear and tear.

At the end of a lease an owner might be surprised to find the premises in poor condition, thus facing the unforeseen costs of cleaning and repairs.

When negotiating the lease, arrangements should be made to avoid such a situation. In a recent decision, the Quebec Court of Appeal focused on a tenant's increased obligations in line with the "careful owner" concept. In that particular case, the owner claimed reimbursement by the former tenant for costs incurred in refurbishing the premises at the end of the lease.

The judge viewed the term "Careful owner" included in the lease as being part of the tenant's responsibilities for maintenance:

"[…] in the same good order and condition […] as they would be kept by a careful owner […]"

The Court explained that the wording reversed the respective roles and responsibilities of the owner and the tenant. Thus the description of the condition of the premises at the beginning of the lease has only relative importance, given that the tenant accepted the terms and assumed the obligation for maintenance as though he himself were the owner.

In light of that reversal the tenant is no longer responsible for only minor repairs, but is also obligated to replace defective equipment, just as a reasonable owner would. 

In applying that test, the Court was of the opinion in this case that the tenant was responsible for replacing the heating and ventilation system, which had fallen into disrepair during the course of the lease.

Francis Hogue, Attorney

Cain Lamarre