Unlike a commercial lease, a residential lease is governed by predetermined and strict rules.
The drafting of a commercial lease allows for the imagination of lawyers and real estate developers and this, unlike residential leases which confine them to predetermined and strict rules. For example, unlike a commercial lease, a residential lease cannot prohibit subletting or the assignment of a lease.
It should be noted that the assignment of a lease relieves the assigning tenant of their obligations (except for a commercial lease if otherwise agreed), while under a sublease, the tenant remains responsible for the lease in the event of default by their subtenant.
Thus, a student, wishing to leave their accommodation before the end of the term, signs an assignment of lease in favor of three other students. To do so, they religiously follow the legal requirements set out in the Civil Code of Quebec and notify the landlord in writing. At the landlord's request, the student even demonstrates the new tenants' solvency. The landlord refuses to recognize the assignment and seeks assistance from the Rental Board*. The Board stipulates that even if the landlord prefers to choose their own tenants, the assignment of a residential lease is a right that prevails over the landlord's desire to terminate the lease. Since the reasons invoked by the landlord are deemed irrelevant, the Board confirms the validity of the assignment.
Lawyers who dabble in the drafting of commercial leases sometimes resemble writers with eloquent, fanciful, and imaginary pens, but those who work in the field of residential leases must restrict their legal creativity and prevent their pens from swirling in any direction.
*Rental Board (166292 31 20140724 G et 1545120)
