Article 1938 C.c.Q.: Right to Stay for a Spouse, a Relative, or After a Death

The married, civil union or parental union spouse of a lessee, or a person who has been living with the lessee for at least six months, being the de facto spouse of the lessee, a relative or a person connected to the lessee by marriage or a civil union, is entitled to maintain occupancy and becomes the lessee if he or she continues to occupy the dwelling after the cessation of cohabitation and gives notice to that effect to the lessor within two months after the cessation of cohabitation. A person living with the lessee at the time of death of the lessee has the same right and becomes the lessee if he or she continues to occupy the dwelling and gives notice to that effect to the lessor within two months after the death. If the person does not avail himself or herself of this right, the liquidator of the succession or, failing him or her, an heir may, in the month which follows the expiry of the period of two months, resiliate the lease by giving notice of one month to that effect to the lessor. In all cases, if part of the rent covers services of a personal nature provided to the lessee, the person living with the lessee at the time of the lessee’s death, the liquidator of the succession or the heir is only required to pay that part of the rent that relates to the services which were provided during the lifetime of the lessee. The same applies to the cost of such services if they are provided by the lessor under a contract separate from the lease.

Civil Code of Québec, art. 1938 C.c.Q.

What this article means

Article 1938 extends the right to maintain occupancy to certain people living with the lessee, to keep them from losing their home when the lessee leaves or dies. Two situations are covered: the cessation of cohabitation and the death of the lessee.

In the first case, the lessee's married, civil union, or parental union spouse: or, if they have lived with the lessee for at least six months, their de facto spouse, a relative, or a person connected by marriage or civil union: is entitled to maintain occupancy and becomes the lessee. For this, they must continue to occupy the dwelling when cohabitation ends and give notice to the lessor within two months. In the second case, the person living with the lessee at the time of death has the same right on the same conditions: continue to occupy the dwelling and give notice to the lessor within two months of the death.

The article also handles the case where no one avails themselves of this right after a death: the liquidator of the succession or, failing that, an heir may resiliate the lease in the month following the expiry of the two-month period, by giving one month's notice. Finally, it limits the obligation to pay the part of the rent corresponding to services attached to the deceased lessee's person to services provided during their lifetime. The central condition, in all cases, is meeting the two-month notice deadline.

What it means for you

If you are a tenant

If you live with the lease-holder and cohabitation ends (the lessee's departure or death) article 1938 may let you stay in the dwelling and become the lessee yourself. You still have to meet the conditions: be one of the covered people (spouse, or a relative who has lived there for at least six months), continue to occupy the dwelling, and above all give notice to the landlord within two months.

This two-month deadline is decisive. Send your notice by a means that proves receipt and keep a copy. Once it passes, the right can be lost. On a death, if no one avails themselves of the right, the succession can then resiliate the lease with one month's notice.

If you are a landlord

Article 1938 means that when cohabitation ends or your tenant dies, a person who was living with them can become the tenant in their place, on the conditions set out, if they continue to occupy the dwelling and notify you within two months. You cannot simply treat the dwelling as vacant.

On receiving such a notice within the deadline, the person becomes the tenant on the terms of the current lease. If no one comes forward within the two months following a death, the liquidator or an heir may resiliate the lease by giving you one month's notice. Note too the special rule on services attached to the deceased tenant's person. Check the deadlines and keep the notices received.

Related articles

• Article 1941 C.c.Q.: Automatic Lease Renewal
• Article 1942 C.c.Q.: Notice of Modification to the Lease
• Article 1945 C.c.Q.: Tenant's Deadline to Respond to a Notice of Modification
• Article 1947 C.c.Q.: Having the Rent Set by the Tribunal
• Article 1950 C.c.Q.: New Tenant: Right to Have the Rent Set
• Article 1953 C.c.Q.: Criteria for Setting the Rent
• Article 1955 C.c.Q.: New Building Under 5 Years Old: Clause F
• Article 1946 C.c.Q.: Tenant's Right to End the Lease When No Notice of Modification Was Received
• Article 1906 C.c.Q.: Rent Adjustment Clauses Without Effect