[1]      The tribunal is seized of two applications which were joined for proof and hearing.

[2]      On February 26, 2010, the landlord, Dorchester Oaks Corp/Complexe Southwest One (« Dorchester »), filed an application at the Tribunal of the Régie du logement wherein it seeks to be awarded damages for lost rental income in the amount of $2,690. (A balance of $12 for December 2009 and $1339 each for the subsequent months of January and February of 2010.)

[3]      It is alleged that the tenant, Kendall Montreuil (« Montreuil ») abandoned the leased premises on November 30, 2009 and that the dwelling has yet to be rented anew.

[4]      In an amendment filed on April 26, 2010, Dorchester alleged that the dwelling would be occupied by a new tenant as of July 1, 2010 and claimed a grand total of lost rental income in the amount of $8046, i.e. December 2009 ($12), January 2010 ($1339), February 2010 ($1339), March 2010 ($1339), April 2010 ($1339), May 2010 ($1339) and June 2010 ($1339).

[5]      For his part, Montreuil filed an application on March 15, 2012 wherein he claims material damages in the amount of $5000. He alleges that the landlord unlawfully disposed of his gym equipment, appliances and sundry pieces of furniture. It is also alleged that the loss of these items deprived him of his opportunity to sublet or « re-let » the dwelling.

Proof and discussion

[6]      The tribunal heard from Dorchester’s representative, Mr. Gauthier, as well as Mr. Montreuil.

[7]      The evidence reveals that Montreuil’s use of the term « sublet » in his application of March 15, 2012 was a misnomer.

[8]      Montreuil and Dorchester were bound by a residential lease for a two storey town house in Pointe-Claire. The term of the lease was twelve months (July 1 to June 30) and the tenant paid rent in the amount of $1,339 per month.

[9]      On December 22, 2009, Montreuil wrote to Dorchester’s representative, Victor Guindi.

[10]   The raison d’être of the letter was to advise Dorchester that Montreuil had vacated the dwelling on November 30, 2009.

[11]   Montreuil « authorized » Dorchester to « lease the said unit to someone else » and undertook to do his best to « try and find another tenant. »

[12]   Clearly, the landlord did not require the tenant’s permission to rent the abandoned dwelling to a new tenant. On the contrary, having been advised of the abandonment, it was incumbent upon Dorchester to mitigate its damages by renting the dwelling within a reasonable delay.

[13]   According to Montreuil, Guindi knew that he was shopping for a home of his own and asked Montreuil to send him a letter to this effect.

[14]   However, there is no probative evidence to the effect that Guindi agreed to resiliate the lease.

[15]   Having decided that he wanted to move elsewhere, Montreuil was obliged to sublet or assign the lease pursuant to Article 1870 of the Civil Code of Quebec.

« 1870. A lessee may sublease all or part of the leased property or assign the lease. In either case, he is bound to give the lessor notice of his intention and the name and address of the intended sublessee or assignee and to obtain the lessor's consent to the sublease or assignment.»

[16]   Instead, Montreuil moved out on the 30th of November 2009 and advised the landlord of this fait accompli on the 22nd of December. Thus, subject to Dorchester’s obligation to mitigate its damages, Montreuil was liable for the rent until the term of the lease expired. Nor did the tenant’s undertaking to « try and find another tenant » preclude the fulfillment of his contractual obligations to the landlord.

[17]   According to Mr. Gauthier, the town house which Montreuil had occupied was not rented anew before July 1, 2010, i.e. 6 months and a day following Montreuil’s departure.

[18]   He explained that the dwelling in question is identical to that of 52 other town houses in the 75 unit project which Dorchester owns and manages.

[19]   With few exceptions, all vacated units require at least six weeks of preparation before they can be shown to potential tenants.

[20]   He suggested that town houses like Montreuil’s are difficult to rent in Winter and that the Spring and Summer months are invariably more propitious.

[21]   He explained that because 53 of the town houses are identical, it did not behoove the landlord to place a separate advertisement for each available unit such as Montreuil’s. Instead, it bought advertisements which emphasized the features and advantages which were common to all 53 town houses.

[22]   Ultimately, the advertisements purchased by Dorchester yielded but one application for the town house which Montreuil had occupied. The application was accepted and the tenant, Mr. Normandin, moved in on July 1, 2010.

[23]   Counsel for the tenant argued that the landlord had failed to expend the requisite effort with a view to mitigating its damages. He suggested that the town houses, including Montreuil’s, benefitted from an excellent location and as such, should have attracted more applicants. Far more significant however, was the absence of specificity in the landlord’s advertisements. Given its obligation to mitigate its damages with regard to Montreuil’s dwelling, it was obliged to publicize the availability of this unit in particular and to promote it with vigor.

[24]   Counsel’s thesis was skilfully presented but the evidence does not enable the tribunal to subscribe to it.

[25]   Montreuil tried to mitigate his financial liability to the landlord by posting his own advertisements on Craig’s List and similar websites.

[26]   Invariably, the advertisements are highly specific. Apart from highlighting the town house’s advantageous location (« Close to schools, hospital, clinics and shopping centres), reference is made to a gamut of services and inclusions (« fridge, stove, extra fridge and deep freezer »), including the « possibility of leaving home gym centre already in basement ». Clearly, the tenant was prepared to contribute some of his own moveable property in order to enhance the marketability of the unit.

[27]   Nevertheless, the tenant’s highly energetic campaign attracted only four potential tenants. According to his testimony, three of the visitors found the rent to be too high. It is safe to say that for these potential customers, price trumped salesmanship.

[28]    With regard to the fourth visitor, Montreuil suggested that he would have rented the unit were it not for the fact that the landlord had removed the gym set and other items from the dwelling.

[29]   However, in the absence of this visitor’s testimony, Montreuil’s proposition was mere conjecture.

[30]   The evidence reveals that the landlord’s efforts to mitigate its damages were neither cavalier nor maladroit. Its explanations for the lengthy period of vacancy were plausible and the tenant failed to demonstrate that a more energetic marketing strategy would have yielded a better result.

[31]   Dorchester made preponderant proof of its damages in the amount of $8046 and will be awarded same.

[32]   With regard to the tenant’s application, the evidence reveals that his claim for material damages in the amount of $5000 is not bereft of merit.

[33]   An exchange of emails between Dorchester’s personnel reveals that in January of 2010, moveable property which Montreuil had left in the town house had been unceremoniously  disposed of.

[34]   More specifically, the tenant claims that the following items were, in his absence, removed and never recovered :

A used gym set which he claims to have purchased for $2080;

A refrigerator and a freezer for which he claims a total of $500;

An L shaped desk which he claims to have purchased from a neighbor for $250;

Vertical blinds on five windows for which no specific sum is claimed.

[35]   Common courtesy and the pertinent provisions of the Civil Code of Quebec dictate that Dorchester should have attempted to communicate with Montreuil before it decided that his property had attained the status of res nullius.

«1978. The lessee, on resiliation of the lease or when he vacates the dwelling, shall leave it free of all movable effects except those which belong to the lessor. If the lessee leaves movable effects at the end of the lease or after abandoning the dwelling, the lessor may dispose of them in accordance with the rules prescribed in the Book on Property which apply to the holder of property entrusted and forgotten.»

«944. Where a thing that has been entrusted for safekeeping, work or processing is not claimed within 90 days from completion of the work or the agreed time, it is considered to be forgotten and the holder, after having given notice of the same length of time to the person who entrusted him with the thing, may dispose of it.»

«946. The owner of a lost or forgotten thing may revendicate it, so long as his right of ownership has not been prescribed, by offering to pay the cost of its administration and, where applicable, the value of the work done. The holder of the thing may retain it until payment.

If the thing has been alienated, the owner's right is exercised, notwithstanding article 1714, only against what is left of the price of sale, after deducting the cost of its administration and alienation and the value of the work done.»

[36]   In support of the aforementioned proposition, we need look no further than the judgement of the Honorable Chantal Sirois, J.C.Q. in the case of Tremblay c. Côté where the defendant’s failure to call upon the plaintiff to revendicate his property was deemed to be an extra-contractual fault.

[37]   Given that the tenant was not entirely blameless for the loss of his property (a simple letter to the landlord to the effect that he had left certain items in the dwelling with a view to enticing potential tenants would have precluded this imbroglio) and that only one receipt was produced in support of the tenant’s claims, the tribunal will on the basis of photographs and Montreuil’s testimony, award the latter $900 for the loss of his property.

FOR THESE REASONS, THE TRIBUNAL :

In the file bearing the number 31 100226-079 :

[38]   GRANTS the landlord’s application;

[39]   CONDEMNS the tenant to pay to the landlord the sum of $8046 with interest at the legal rate calculated from April 26, 2010;

[40]   AUTHORIZES the tenant to deduct from the aforementioned sum any and all sums to be awarded to the tenant in the file bearing the number 31 120315-013.

[41]   DECLARES that the landlord’s judicial costs have been offset, in their entirety, by the judicial costs to be awarded to the tenant.

In the file bearing the number 31 120315-013 :

[42]   GRANTS the tenant’s application in part;

[43]   CONDEMNS the landlord to pay to the tenant the sum of $900 with interest at the legal rate plus the added indemnity for damage awards pursuant to Article 1619 C.c.Q. calculated from March 15, 2012.

[44]   AUTHORIZES the tenant to deduct the aforementioned sum from any and all sums awarded to the landlord in the file bearing the number 31 100226-079;

[45]   DECLARES that the judicial costs owed to the tenant have been offset, in their entirety, by the judicial costs awarded to the landlord;

[46]   DISMISSES the other conclusions.