We are often asked by our landlord clients whether they can
change the locks on a tenant's premises when it is evident the
tenant is in default or has indicated it will be in default under
its lease. The answer is clear: unless the tenant has already
vacated the premises and demonstrated it has no intention of
continuing to occupy the premises, changing the locks will expose
the landlord to a claim and damages from the tenant.
A recent judgment from Quebec's Superior Court1
confirms this point.
In this case, despite some murky circumstances surrounding the
execution of the lease (for example, multiple versions of the lease
were signed, some of them seemingly intended for a different
tenant), the tenant began its restaurant business in the leased
premises in January 2010.
The restaurant had a rough start and was not as successful as
the tenant would have desired. In August 2010, the tenant and the
landlord met to discuss the rental payments. Again, while there are
contradictory versions of what was discussed at the meeting, the
landlord claimed the tenant asked for a 50% reduction in the rent
and the landlord countered with a 20% reduction until such time as
Restaurant padlocked to prevent equipment removal
In response to this proposal, the landlord claimed the tenant
said it would close the restaurant and empty the premises of its
equipment. After being reminded that the lease provides for a
hypothec on the tenant's equipment and such equipment must
remain in the premises, the tenant abruptly left the meeting. The
tenant denied the landlord's version of the meeting and while
it acknowledged it was not pleased with the landlord's
proposal, it never intended to vacate the premises.
In any event, the landlord immediately padlocked the premises to
mitigate the risk of the tenant removing its equipment. Despite
this, the tenant succeeded in breaking the lock and proceeded to
remove the cash register and Interac machine. The landlord then
installed a more secure padlock, which was nonetheless broken a few
days later and the rest of the restaurant equipment was removed
from the premises.
Termination notice required
While the judge recognized the landlord's right to
unilaterally terminate the lease as a result of a tenant default,
because the lease required the landlord to give notice in such
circumstances, the landlord's failure to do so proved to be a
fatal flaw in the landlord's handling of this situation. The
court concluded the landlord's reaction to the tenant's
statement that it would vacate the premises was abusive and there
were other ways to protect its interests in the leased premises
(for example, the judge suggested a security guard could have been
sent to the premises instead of padlocking the restaurant).
The tenant did not get away unscathed, as the judge did not
entirely believe the tenant's version of the facts. The judge
was of the view that the tenant did in fact empty the premises of
the restaurant equipment despite the tenant's denials.
While the judge awarded the landlord $31,948.08 from the
$83,782.56 originally claimed, the court reiterated that a landlord
cannot be judge and jury and unilaterally decide to padlock
premises when no prior notice is given to the tenant.
1. 7600 Développements Inc. v. Batres,
2014 QCCS 2024.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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