Article 1594 C.c.Q.: Putting the other party in default
A debtor may be in default for failing to perform the obligation owing to the terms of the contract itself, when it contains a stipulation that the mere lapse of time for performing it will have that effect. A debtor may also be put in default by an extrajudicial demand to perform the obligation addressed to him by his creditor, a judicial application filed against him or the sole operation of law.
Civil Code of Québec, art. 1594 C.c.Q.
What this article means
Article 1594 sets out the different ways a party can be "put in default" of performing their obligations. It is the legal basis for the demand letter (mise en demeure): the step you must, or are strongly advised to, take before starting a court action over a contract, including a residential lease.
There are four ways to put someone in default: (1) by the terms of the contract itself, when a clause provides that simply letting time pass is enough; (2) by a written extrajudicial demand from the creditor: this is the "demand letter" everyone knows; (3) by a formal court application; and (4) by operation of law alone in certain specific cases.
For a residential lease, an extrajudicial demand letter is almost always the step that comes before an application to the TAL (Tribunal administratif du logement). Even when it is not strictly required, the TAL looks favourably on the party who tried to resolve things amicably before suing. A well-written demand letter can also head off the case entirely: many disputes settle at this stage.
What it means for you
If you are a tenant
Before filing an application at the TAL (Tribunal administratif du logement) against your landlord, send a demand letter (mise en demeure). Clearly describe the problem, the fix you are asking for, the deadline you are giving (usually 10 days), and the steps you will take if nothing is done. Send it in a way that proves it was received: registered mail, a bailiff, or certified email that conforms to the LCCJTI.
Keep a copy of the demand letter and your proof of receipt. These documents will be essential at the TAL to show your good faith and that the landlord genuinely had a chance to fix the situation.
If you are a landlord
When you receive a demand letter, take it seriously. The deadline it gives (often 10 days) is your last chance to fix the situation without going to the TAL (Tribunal administratif du logement). Reply in writing, even if you dispute the facts: your reply becomes part of your file.
When you send a demand letter yourself (for unpaid rent, say), keep the tone professional and factual. Describe the breach, the amount owed, the deadline you are giving, and the steps to come. An aggressive or threatening tone can be held against you and may amount to harassment (article 1902).
Related articles
- Article 1973 C.c.Q.: Resiliation by the Court: Grace Period or Immediate Resiliation
- Article 1971 C.c.Q.: Lease termination for late rent payment
- Article 1883 C.c.Q.: Paying before judgment to avoid lease termination
- Article 1855 C.c.Q.: The tenant's core obligations
- Article 2925 C.c.Q.: The three-year prescription period for claims