In the context of real estate transactions, the buyer sometimes grants the seller a right to occupy all or part of the building he has just acquired, a situation often referred to as a “deferred sale”. It may also happen that the seller gives the buyer a right to occupy the premises before the sale, a situation often referred to as “pre-occupation”. This type of agreement can vary in duration from a few days to several years, is often subject to conditions, including the payment of a monthly compensation, and can sometimes lead to disputes that need be brought in front of the courts.
In this context, it is important to ponder on the appropriate forum to hear a dispute arising from such an agreement. Firstly, it is important to know that the Régie du Logement has jurisdiction, to the exclusion of any court, to hear any application regarding the lease of a dwelling where the object of the application is less than 85,000$. The elements of a deferred possession agreement or pre-occupation can easily match those of a lease, which is defined by the Civil Code of Québec in section 1851 as a “contract by which a person, the lessor, undertakes to provide another person, the lessee, in return for a rent, with the enjoyment of movable or immovable property for a certain time ». However, despite its significant similarities with the leases of dwelling, this type of agreement does not fall within the jurisdiction of the Régie du Logement and thus, any resulting dispute must be heard in front of the ordinary courts.
The intention of the parties to a deferred sales or pre-occupation agreement concerns the sale or purchase of an immovable and the occupation rights granted are solely an accessory to this transaction. Given that the primary transaction is not the conclusion of a lease, the Régie du Logement has no jurisdiction regarding a dispute arising form such agreement, even in the case where the parties would have decided to document the terms of their agreement on the mandatory form for the lease of a dwelling.
