McGILL LAW JOURNAL
Volume 14
Montreal
1968
Number]
The Liability of the Landlord for the Acts of Co-Tenants
John W. Durnford *
Introduction
2
1. The present state of our jurisprudence and doctrine
10
10
11
12
13
15
24
5
6
6
7
8
8
9
9
…………….
failed to act ……………..
in the prem ises ……………
……………………………
(a) The grounds on which the landlord has been held to be liable ……
(i) Where the disturbances result in uninhabitability
………………..
(ii) Where the landlord authorizes the commission of the acts
(iii) Where the landlord has not exercised reasonable care in the
selection of the offending co-tenant …………………………………
(iv) Where the damage can be said to have been caused by a defect
…………………………………..
(v) Where the landlord is warned of impending trouble but has
…………………………………………………………….
(vi) Where there is a clause in a commercial lease barring the
landlord from leasing other premises to a competitor ………..
(b) The landlord has been held not to be liable under the following
circum stances …………………………………………
…………………………………….
………………………
(i) Where the damages result from isolated acts
(ii) Where the disturbances lack a character of permanence, or
there is a direct recourse open to the tenant to make the
trouble cease …………………………………… 10
11
11
(iii) Where the co-tenant has failed to carry out a tenant’s repair
(iv) Where the co-tenant’s act is legitimate and reasonable ……..
(v) Where there is a clause relieving the landlord of responsibility
…………………………..
(vi) Where the defendant landlord is a sub-lessor ……………………….
(c) The conclusions that may be drawn from the jurisprudence ………
for the acts of co-tenants
……………
….
2. The dilemma of the conflicting principles and a search for a new
approach …………………………………………………………………………………………………….
C onclusion ……………………………………………………………………………………………………….
* Associate Professor of Law, McGill University.
McGILL LAW JOURNAL
[Vol. 14
Introduction
It is of the essence of the contract of lease that the landlord
furnish enjoyment of the premises leased.’ All his other obligations
flow from this. 2 One of these is that the enjoyment must be peace-
able (article 1612(3) C.C.). 3 Thus, while the lease by a landlord
of premises not belonging to him may be valid,4 if a claim is made
upon the property by one maintaining that he is owner or the
holder of some other right, it is the landlord’s duty to defend the
tenant’s enjoyment or to indemnify him if he should fail.
On the other hand, the Code naturally sets limits on the land-
lord’s obligation in this area, for it would be unrealistic and unfair
to make him responsible for all disturbances affecting the tenant’s
enjoyment.5 Thus the Code contains article 1616:0
le
Art. 1616. Le
locateur n’est pas
locataire du
tenu de garantir
trouble que des tiers apportent A sa
jouissance par simple voie de fait
sans pr~tendre aucun droit sur la
chose louse; sauf au locataire son
droit aux dommages-int~r~ts contre
tiers, et sujet aux exceptions
ces
6nonees en l’article qui suit.
Art. 1616. The lessor is not
obliged to warrant the lessee against
disturbance by the mere trespass of
a third party not pretending to have
thing leased;
any right upon
lessee his right of
saving
damages against the trespasser, and
subject to the exceptions declared in
the following article.
the
the
to
While the expressions “mere trespass” and “simple Voie de fait”
have something of an air of mystery to them, it would seem that
they refer to nothing more than acts causing damages. This is indi-
iL. Faribault, Trait6 de droit civil du Quebec, t. 12, (Montreal, 1951), p. 76;
J.W. Durnford, The Landlord’s Obligation to Repair and the Recourses of the
Tenant, (1966), 44 Can. Bar Rev. 477 at p. 499; Lemcovitch v. Daigneault,
[1,957] C.S. 178 (Collins, J.).
2 Planiol et Ripert, Traitj pratique de droit civil frangais, 2e 6d., t. 10, (Paris,
1956), no. 495, p. 635.
3 Apart from differences in terminology, this provision is the same as that
contained in article 1719 (3) C.N.
4 See, inter alia, P.B. Mignault, Le droit civil canadien, t. 7, (Montreal, 1906),
pp. 226-228; Snow’s Landlord and Tenant in the Province of Quebec, 3rd ed.,
by L.C. Carroll, (Montreal, 1934), pp. 59 et seq.; Pari V. Cowper, [1957]
B.R. 323. Just off-hand and en passant, one may be permitted to ask oneself
whether this principle-will always hold true. Thus if one were to lease premises
for the opening of a store, it would be important to be able to rely on being
able to remain in the same locality over a fairly long period of time. If it
were discovered at or near the start of the lease that there would always
exist the imminent possibility of eviction by the owner, might not this be a
possible ground of resiliation, especially if changes and alterations in the
premises were required?
5 Planiol et-Ripert, op. cit., t. 10, no. 521, pp. 704-5.
6 Article 1725 C.N. is to the same effect.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
3
cated by Pothier,7 who gave as examples of “voies de fait” the putting
to pasture of their herd by neighbouring workmen in the field of a
leased farm, though not claiming any right in it; burglars stealing
grapes from vines by moonlight; and people throwing poison into
ponds, thereby killing the fish. Modern life gives rise to similar
examples.8
The reasons for the exclusion of the acts of third parties from
the obligations of the landlord are not far to seek. Such third parties
are not subject to the landlord’s control, for they are strangers to
him.9 1o Moreover, the tenant being in possession of the premises, is
7Oeuvres, Trait6 du contrat de louage, 2e 6d., by Bugnet, t. 4, (Paris, 1861),
no. 81, pp. 35-86.
not a co-tenant –
s Jonas v. Arick, [1950] B.R. 488 (theft); Dodick v. Learmonth, (1933),
54 B.R. 321 (a flood caused by a third party –
by the
drilling of a hole in a pipe in the ceiling between plaintiff tenant’s premises and
those above); Fitzpatrick V.- Lavallie, (1904), 25 C.S. 298 (C. Rev.)
(a third
party cutting hay and hunting on part of leased land); see also Great North-
Western Telegraph Co. of Canada v. Montreal Telegraph Co., (1890), M.L.R.
6 C.S. 74, 13 L.N. 156, 34 L.C.J. 35 (Wurtele, J.); (1890), M.L.R. 6 B.R. 257,
14 L.N. 9; (1892), 20 S.C.R. 170. On the other hand, the lease will be resiliated
on the demand of the tenant where the third party causing the trouble is the
landlord’s wife, who enters plaintiff tenant’s store in a drunken condition
and disturbs customers: Masse V. Brunelle, (1910), 16 R.L. n.s. 270
(C.S.)
(Bruneau, J.).
9 Thus it has been held that where there is a mere lease of space in a garage,
the landlord will not be liable if the tenant’s car is stolen by a third party:
St. Jean v. V’6zina, [1950] R.L. 406
(Marier, J.). See also Coupey v.
Mayor Building Ltd., (1929), 35 R.L. n.s. 494 (C.S.)
(Martineau, J.). See the
borderline case of Brisker v. Larue, (1.903), 23 C.S. 447 (Mathieu, J.), in which
the lessor was held liable for the damages caused by robbers who broke into
an adjacent building belonging to the lessor and caused water to enter into
plaintiff tenant’s premises by upsetting a cistern.
(C.S.)
10 A contractor engaged by the owner of the building renders the landlord
liable for damages caused to a tenant: the landlord cannot escape liability
by arguing that the contractor is a third party under article 1616
(Magee
(1929), 35 R.L. n.s. 506
(C.S.)
v. Montreal Realty & Construction Ltd.,
(Joseph Demers, J.); this case related to poisonous gas leaking from a central
refrigeration system due to defective work). Another case with a similar fact
pattern is Ouimet v. Dame L’Abbi, [1965] B.R. 62, where the landlady was held
liable towards the tenant, and the refrigeration repairers were ordered, in
warranty proceedings taken by the landlady, to reimburse her the amount of
the damages she was condemned to pay to the tenant. Similarly, where a
landlord’s representative
(a janitor) causes a radiator to leak, the landlord
will be liable for the resulting damages, and this despite the presence in the
lease of a stipulation excluding liability: Ducros v. Feinstein, [1964] R.L.
424 (C. Mag.)
(Leduc, Chief Judge).
MoGILL LAW JOURNAL
[Vol. 14
generally in a better position to do something about third parties,
such as calling the police when the disturbances occur.” 12 13
The question that we must now pose and attempt to answer is
whether a tenant who suffers damage by reason of the act of a
co-tenant has a recourse -against their landlord on the basis of the
latter’s obligation to furnish peaceable enjoyment under article
1612(3), or whether he is to be treated, under article 1616, as a
third party for whose acts the landlord is not to be held responsi-
ble.14 Since the Code contains no provision relating to the co-tenant
as such, we, are faced with a difficult task of interpretation of legal
texts, which interpretation cannot be effectively carried out in
the absence of a policy approach. For it is not enough simply to
decide, as some judgments purport to do, that the co-tenant is, or
is not, a third party under article 1616, because the result will be
11 It was suggested in Fiset v. Dallaire, (1924), 62 C.S. 538 (Surveyer, J.),
that a tenant who is disturbed could obtain peace by having the offending
party summoned to the Recorder’s Court (now known as the Municipal Court).
The fact that the person causing the disturbances was in this case the landlord
would not seem to affect the principle laid down by the court that when the
tenant has an effective recourse at his disposal to deal with troubles that do
not have a character of permanence, he should use it, and if he sues for
resiliation of the lease, his action will be dismissed. As to whether this principle
should be applied so as to relieve the landlord of liability for the act of a
co-tenant is not clear.
12 The Code has not left the tenant entirely to his own devices, however,
for article 1617, by a reference to article 1660, provides for a dissolution of the
lease or -a reduction of the rent should the tenant’s right of action for damages
against the third party be ineffectual by reason of the latter’s insolvency
or his being unknown. The French Code does not contain any similar article.
13 It is to be noted that the -landlord who pleads the defence that the act
was that of a third party has the burden of proof of establishing such fact:
The W.H. Thornhill Co. Limited -v. Avmor Ltd., [1959] C.S. 116 (Perrier, J,).
14 It is to be noted that atenant’has a delictual recourse against his co-tenant
in recovery of damages caused by the latter, such as those resulting from a
flood arising -fron a failure on the part of the tenant to repair or to force
the landlord to repair: Paquet v. Nor-Mount Realty Company, (1916), 49
(in this case broken windows in the bathroom had caused
C.S. 802 (C.- Rev.)
a pipe to freeze). He may also sue an adjacent proprietor for damages where
the latter is nelighnt in the exercise of his rights of construction in relation
to a mitoyen wall, but he has no claim for damages against’his lessor: Russell
‘4 C.S. 355
v. Clay, (1894); 6 C.S. 62 (C. Rev.);’ Panneton v. Fraser, (1893),
(Doherty, J.). See also Bonhomme IV. The Montreal Water and Power Co.,
(1915), 48 C.S. -486 (C. Rev.). In lacurto V., Restaurant de la Porte St. Jean
Incorporde, [1965] C.S. 201 (Dorion, C.J.), a -tenant who occupied premises
on a monthly basis -was denied an injunction against a co-tenant who operated
a night club -because under the balance of convenience principle, the co-tenant
would stand to suffer a greater loss than a tenant whose lease could end at a
month’s notice.
.
-.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
5
an arbitrary one which will cause the landlord to be liable for every
act of the co-tenant, or for none of them. No flexibility would
remain with which to be able to handle the wide variety of acts that
a co-tenant may do, for some of which the landlord should be re-
sponsible, and for some of which he should not be.
No uniform solution has been arrived at by our courts. In many
instances they have granted the claims of tenants against landlords
based on acts of co-tenants, but have done so on a wide variety of
grounds. On many other occasions they have turned down the tenant
who has sued his landlord. We shall study the grounds on which the
decisions have been rendered to ascertain whether any general
principles may be drawn from them. This alone will not suffice,
however, for the absence of a consistent approach by the courts
of Quebec is an indication that a more reliable criterion should be
sought. In this connection, an examination will be made of the juris-
prudence of the Cour de Cassation, which, in strong contrast to
that of our own courts, has been remarkably consistent.
1. THE PRESENT STATE OF OUR JURISPRUDENCE AND DOCTRINE
There are judgments holding that because of article 1616 a land-
lord is not liable for the acts of a co-tenant, the rationale being
that the co-tenant is a third party within the meaning of that
article. 5 There are other judgments that declare that article 1616
does not apply, the co-tenant not being a third party.1 A third
category of judgments makes no reference to article 1616 when
deciding whether the landlord should be liable for acts of c0-
tenants.17
(C.S.)
i5 Peate Musical Supplies Limited v. Lazarus Realty Corporation, [1957]
(Montpetit, J.); Beaulieu V. Beaudry, (1899), 16 C.S. 475
(C. Rev.); Grill V.
(Rh6aume, J.); Nantel V. Bounadare,
R.L. 109
(Taschereau, J.); Clerk v. Poissant, (1920), 57 C.S. 528
Joannette, (1941), 47 R.J. 39
[1944] R.L. 51 (C.S.)
(Forest, J.).
(C.S.)
l
(C.S.)
‘6Tremblay v. Doddrildge, (1942), 48 R.L. n.s. 22
(Belleau, J.);
Leblane v. Leclair, (1934), 72 C.S. 491 (Forest, J.); Cooper V. The Holden
Company, Limited, (1913), 44 C.S. 525 (Archibald, J.); Dame Barre v. -Dame
Viau, (1931), 69 C.S.
(Philippe Demers, J.); Vezina v. Scales, (1926), 64
C.S. 49 (de Lorimier, J.); Taylor v. Frigon, (1913), 44 C.S. 108 (C. Rev.). See
also Mt. Royal Furniture and T.V. Inc. v. Industrial Glass Company Limited,
[1964] C.S. 269 (Perrier, J.); Pigeon v. Roussin, (1831), 4 L.N. 326 (Circuit
Court) (Johnson, J.); Le Procureur Gindral v. Ct , (1977), 3 Q.L.R. 235,
(Casault, J.); Bernard v. Ctd, (1892), 2 C.S. 82, 16 L.N.
1 L.N. 179 (C.S.)
87 (C. Rev.).
17Fitzpatrick v. Darling, (1896), 9 C.S. 247 (Curran, J.); Larouche V. Leahy,
[19581 B.R. 247; Benoit v. Smith, (1899), 16 C.S. 591 (Doherty, J.); Lion
Fastener Company Limited v. Gross, [1964] B.R. 475; Scott v. Dame Newcomb,
McGILL LAW JOURNAL
[Vol. 14
(a) The grounds on which the landlord has been held to be liable.
The foregoing shows that the problem of determining whether a
landlord will be liable for the acts of a co-tenant cannot be solved
by a mere reference to article 1616. It is therefore necessary to
attempt a new approach to the question of the landlord’s liability.
One way to do this is to take the jurisprudence and to place the
judgments into appropriate categories in the light of the various
types of acts that co-tenants commit and the circumstances that
may surround them.
The landlord has been held liable toward one of his tenants for
the acts of a co-tenant on the following grounds:
(i) Where the disturbances result in uninhabitability. This may
occur where the upstairs co-tenant is operating a bawdy house.1 s
Uninterrupted disturbances generally also qualify, such as singing,
screaming, dancing, banging on floors and constant abusive telephone
calls.’ 9 Dangers to health will constitute uninhabitability, and these
may result from bad smells, smoke and gasoline fumes from premises
of co-tenants. 20
[1958] B.R. 778; The Great-West Life Assurance Company v. Raby, [1960]
C.S. 505 (Desmarais, J.); Yonge V. Vineberg, (1914), 45 C.S. 318 (C. Rev.);
Tom v. Singer, (1916), 22 R.L. n.s. 49
(C. Rev.); Lefebvre v. Chartrand,
(1929), 35 R.L. n.s. 405, (Circuit Court) (Archambault, J.); Labbg v. Guay,
[1946] C.S. 228 (Gibsone, J.) (though the defendant lessor pleaded article
1616, the judge does not rely on it in the dispositif of his judgment); Sigouin
v. Taschereau, (1921), 27 R.L. n.s. 376
(C. Rev.). It should be noted that
the mere presence of a co-tenant does not mean that the case does not turn
on some other point (such as the damage being found to have been caused
by a defect in the premises); however, one sometimes suspects that while
another ground purports to be the basis of the judgment, the reason for it is
that in certain instances the court may be wishing to avoid having to rule
on the co-tenant issue as such. See, for example, Chabot v. Dame Paquin,
[1965] B.R. 425.
18 Tremblay v. Doddridge, (1942), 48 R.L. n.s. 22 (C.S.)
(Belleau, J.);
Fitzpatrick v. Darling, (1896), 9 C.S. 247 (Curran, J.); Tom V. Singer, (1916),
(C. Rev.). The fact that the leased premises were formerly
22 R.L. n.s. 49
used for a bawdy house is also a ground for resiliation because of their
resulting bad reputation, visits being made by customers unaware of the
change of destination of the place: Lorio v. Morgan, (1914), 46 C.S. 379
(Lafontaine, J.); Levin v. Lalande, (1906), 30 C.S. 481 (Dunlop, J.). On the
other hand, it has been held that where a tenant sues to cancel his lease by
reason of a co-tenant operating a bawdy house, he has no cause of action left
where the co-tenant vacates during the proceedings: St. Aubin V. Fernandez,
(1927), 42 B.R. 117.
19 Vezina v. Scales, (1,926), 64 C.S. 49 (de Lorimier, J.); Leblanc V. Leclair,
(1934), 72 C.S. 491 (Forest, J.).
20 Beardmore v. The Bellevue Land Co., (1906), 15 B.R. 43; Sigouin V.
Taschereau, (1921), 27 R.L. n.s. 376 (C. Rev.).
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
7
Since it is of the essence of the contract of lease that the landlord
furnish enjoyment of the premises21 and since uninhabitability
represents a total absence of enjoyment, the issue as to whether the
co-tenant is the cause of the uninhabitability does not really arise,
for the tenant is always entitled to a resiliation in the event of
uninhabitability. The mere fact that uninhabitability is a ground
for the rescission of the lease does not mean, however, that it is
essential that it be present in all instances. While there must be
uninhabitability if the tenant is to be successful in having a lease
cancelled on the ground of a lack of repairs, 22 this is not so where
there is a substantial diminution of enjoyment resulting from other
causes.23
(ii) Where the landlord authorizes the commission of the acts.
This authorization may result from the purpose for which the
premises were leased, which may involve noise or other disturbance, 24
or it may take the form of permitting the co-tenant to perform
alterations to the building which give rise to noise and dirt 25 or of
changing the destination of the premises. 26 The authorization may
consist of a simple acquiescence. 26a This can result from the failure
to act to cause disturbances to cease and from carelessness in the
selection of the co-tenant.27 The justification for the landlord being
held liable where there is authorization on his part is that the act
is then deemed to be his own.
While it would not seem essential that the disturbance authorized
or acquiesced in by the landlord arise only after the tenant who is
the victim enters into possession of his premises, one might wonder
whether the tenant who can plainly see a source of potential dis-
turbance before he enters into a lease (such as where he rents an
apartment situated above a repair garage) will be in as strong a
21 Faribault, op. cit., t. 12, p. 76; Durnford, loc. cit., at p. 499; Lemcovitch
v. Daigneault, [1957] C.S. 178 (Collins, J.).
22 See, inter alia, Durnford, loc. cit., at p. 505, together with the authorities
23 See, for example, The Great-West Life Assurance Company v. Raby, [1960]
therein cited.
C.S. 505 (Desmarais, J.).
24 Taylor V. Frigon, (1913), 44 C.S. 108 (C. Rev.); Dame Barre v. Dame Viau,
(1931), 69 C.S. 111 (Philippe Demers, J.); Pasquini v. Mainville, (1917), 52 C.S.
22 at p. 23 (C. Rev.)
(where the results of a preceding action are mentioned).
25 Scott v. Dame Newcomb, [1958] B.R. 778.
2GLe Procureur Gdn6ral v. CU6,
(1877), 3 Q.L.R. 235, 1 L.N. 179
(C.S.)
(Casault, J.).
26a Ibid.
27Vzina v. Scales, (1926), 64 C.S. 49 (de Lorimier, J.); The Great-West
Life Assurance Company v. Raby, [1960] C.S. 505 (Desmarais, J.).
McGILL LAW JOURNAL
[Vol. 14
position as if the cause of the disturbance only occurred or became
evident after his entering into occupation. Much will depend on the
nature of the locality and other circumstances.
(iii) Where the landlord has not exercised reasonable care in
the selection of the offending co-tenant. A landlord who leases to a
person who is notoriously unfit to be trusted with the care of
premises will be liable for the damages caused to other tenants.
Thus, in Yonge v. Vineberg,28 the landlord was held responsible for
damages caused by a co-tenant who was a habitual drunkard who
four times in four months caused floods. The lessor must exercise
reasonable care in his choice of tenants.
(iv) Where the damage can be said to have been caused by a
defect in the premises. The landlord is obliged to warrant the lessee
against defects in the thing leased (article 1614) .29 This will some-
times render the landlord liable for damages suffered by a tenant
when the court night otherwise hesitate to hold the landlord liable
for the act of a co-tenant. Thus, for example, in Chabot v. Paquin,0
‘the upstairs co-tenant went out leaving the tap on, with the result
that the sink overflowed and plaintiff tenant suffered damages in
his ground floor store. The majority judgment held the landlord
liable because the drain was defective and became blocked easily;
Mr. Justice Pratte, dissenting, suggested that the landlord was not
responsible as he could not have foreseen that the tenant would
allow the drain to get blocked and then commit the act of gross
negligence of going out and leaving the tap on –
that even if the defect
in the drain was a link in the chain which led to the flood, this was
insufficient to render the landlord liable.3 1
28 (1914), 45 C.S. 818 (C. Rev.).
29 It
defect.
is not entirely clear when the landlord will owe damages caused by a
30 [1965] B.R. 425.
31 Other examples of the landlord being held responsible for damages on the
ground of defects include: Cooper v. The Holden Company, Limited, (1913), 44
C.S. 525 (Archibald, J.); Mt. Royal Furniture and T.V. Inc. v. Industrial Glass
Company Limited, [1964] C.S. 269 (Perrier, J.); Bernard v. C6te, (1892), 2 C.S.
82, 16 L.N. 87 (C. Rev.); Beaudoin V. The Dominion Clothing Company, (1908),
34 C.S. 157 (C. Rev.)
(this latter case does not, however, relate to the liability
of the landlord for the act of a co-tenant). The presence of defects does not
always render the landlord liable for the damages, however; where the defect
is within the realm of responsibility of tenants, a claim against the landlord
will be dismissed: Julien v. Julien, [1945] B.R. 189; Peate Musical Supplies
Limited v. Lazarus Realty Corporation, [1957] R.L. 109 (C.S.)
(Montpetit, J.);
Larouche v. Leahy, [1958] B.R. 247. Moreover, a tenant has no recourse against
the landlord on account of being disturbed early in the morning by the noise
No. 1J
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
9
(v) Where the landlord is warned of impending trouble but has
failed to act. A good illustration of this is to be found in Gorn V.
C6te St. Luc Barbecue Inc.32 Plaintiff-tenant (the Barbecue establish-
ment) occupied ground floor premises and suffered damages by
reason of a flood resulting from a frozen pipe that burst in cold
weather in a co-tenant’s apartment on the second floor. The landlord
was held liable for the damages even though the second floor co-
tenant was responsible for keeping his premises heated (they were
leased as cold flats), because the third floor tenant had called the
agent of the building administrator on the Saturday to advise that
the water was not running in her apartment, only to be told that
nothing could be done before the Monday; the bursting and resulting
flood occurred on the Sunday. The landlord, though warned of trouble,
had not acted to avoid its occurrence.
(vi) Where there is a clause in a commercial lease barring the
landlord from leasing other premises to a competitor. A tenant of
a store in a building or in a shopping centre may wish to protect
himself against a competitive business that might be carried on by
a co-tenant in the same building or centre. He may do this by having
a stipulation in his lease forbidding the landlord to let premises to
a competitor. A tenant will accordingly have a recourse against his
landlord where he is affected by such competition. 33
What has been made abundantly clear by the jurisprudence how-
ever, is that the mere act of renting premises to a co-tenant in the
same line of business (that is, to a competitor), will not alone render
the landlord liable for damages to the tenant who is affected. 4 This
kind of damage, with its effect of lowering prices, is considered as
being beneficial to society, and is consequently not actionable.
caused by upstairs co-tenants getting up even though the type of construction
is not perfect, if it is similar to that used by the majority of architects: Benoit v.
Smith, (1899), 16 C.S. 591 (Doherty, J.).
32 [1963) B.R. 257. See also Labbg v. Guay, [1946] C.S. 228 (Gibsone, J.).
The same principle applies where the co-tenant abandons the premises: Bernard
v. C6t6, (1892), 2 C.S. 82, 16 L.N. 87 (C. Rev.)
in the cold weather the
landlord must heat the abandoned premises, if necessary, to avoid a pipe bursting.
33 Aubry et Rau, Droit civil frangais, 6e 6d., t. 5, (Paris, 1946), no. 366, p. 225,
footnote 37; Paris, 22 dec. 1937, Gaz. Pal. 1038.1.235; Paris, 3 fdv. 1942, D.1942.86.
34 Gameroff and Grovedale Construction and Realty Co. Ltd. V. Voelkner, [1965]
B.R. 827; Cass. req. 9 janv. 1935, Gaz. Pal. 1935.1.320. See also the note com-
menting on the judgment rendered by the Court of Appeal of Paris, 22 ddc. 1937,
Gaz. Pal. 1938.1.235. In the absence of a clause prohibiting leasing to a com-
petitor, there must be evidence of a conspiracy to create unfair competition.
Presumably the underlying principle is that ours is still a basically free enter-
prise society.
–
McGILL LAW JOURNAL
[Vol. 14
Hence the clause that excludes the letting of premises to com-
petitive businesses will only cause the landlord to be liable where
the competition complained of comes squarely within the clause
prohibiting it;3 5however, where a co-tenant sells items as a service to
clients because the complaining tenant, who is meant to sell them,
is unable to do so on account of being constantly out of stock, the
tenant so affected will have no recourse against his landlord.3
(b) The landlord has been held not to be liable under the following
circumstances.
The landlord has been held not to be liable towards one of his
tenants for the acts of a co-tenant on the following grounds or in
the following circumstances:
(i) Where the damages result from isolated acts. There are a
number of reported judgments where the landlord has been held
not to be liable for damages caused by the fault of a co-tenant
where an isolated act has been committed. A typical example, is a
flood caused by the bursting of a pipe or the blocking of a drain
and resulting from the co-tenant’s negligence. 37 It is to be noted that
in each instance these isolated acts could not have been foreseen by
the landlord.
(ii) Where the disturbances lack a character of permanence, or
there is a direct recourse open to the tenant to make the trouble cease.
The view has occasionally been taken that the disturbance must be
permanent with the result that the tenant has no hope of having
peaceful enjoyment, and that should there be another effective
recourse to force the cessation of the trouble, such as calling the
police and laying a charge, he should exercise it.38 This might be
regarded as a principle forming part of the general rules of contract
35 Norman Small Inc. v. Miller, [1965] C.S. 348 (James Mitchell, J.); Grover’s
Ltd. v. Dominion Square Corporation, (1932), 70 C.S. 565 (Archer, J.); Frego
Construction Incorporated v. Mary Lee Candies Limited, [1963] S.C.R. 429.
3 6Moisan v. L’Auditorium Ltie, (1927), 65 C.S. 442 (Lemieux, C.3.).
37 Beaulieu v. Beaudry, (1899), 16 C.S. 475 (Taschereau, J.); Grill v. Joan-
nette, (1941), 47 R.J. 39 (C.S.)
(Rhdaume, J.); Clerk V. Poissant, (1920), 57
C.S. 528 (C. Rev.); Larouche v. Leahy, [1958] B.R. 247; Nantel V. Bounadare,
[1944] R.L. 51 (C.S.)
(Forest, J.). Reference may also be made to Pigeon V.
Roussin, (1881), 4 L.N. 326 (Circuit Court) (Johnson, J.).
38Fiset v. Dallaire, (1924), 62 C.S. 538 (Surveyer, J.) (this case apparently
involved disturbances by the lessor himself; the remark that the disturbance must
have a character of permanence may only have been made in relation to the
seriousness of making a demand in resiliation).
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
11
that an agreement entered into by the parties is not to be put
–
aside lightly.39
(iii) Where the co-tenant has failed to carry out a tenant’s repair.
This was the basis for the landlord being held not to be liable for
damages suffered by a tenant as a result of a flood caused by a
defective toilet washer, which was held to have been caused by the
failure on the part of the co-tenant to attend to this repair.40 It is
to be noted that this situation represented another isolated act.
(iv) Where the co-tenant’s act is legitimate and reasonable. It is
not a defence, we have seen, for the landlord to claim that the co-
tenant who is causing a disturbance is acting within the rights
granted to him under his lease, for the landlord should not have
leased premises for purposes the exercise of which would disturb
other tenants. Where, however, the co-tenant is acting within his
rights under the lease and at the same time is not infringing the
rights of the complaining tenant, there is no recourse against the
landlord to have the co-tenant cease his acts.41
(v) Where there is a clause relieving the landlord of responsibility
for the acts of co-tenants. Our regime of freedom of contract enables
39 Another facet of the problem is seen in the case of Iacurto V. Restaurant de
la Porte St-Jean Incorporge, [1965] C.S. 201 (Dorion, C.J.). A tenant applied
for an injunction against a co-tenant who operated a restaurant and night club
in order to have the noise late at night ordered to cease. It was held that since
the complaining tenant’s lease was on a month-to-month basis and it would take
the co-tenant night club operator more than one month to relocate, under the
balance of convenience rule that governs the issuing of injunctions, an injunction
should not be granted because the night club owner would suffer a greater loss
than the complaining tenant.
40 Peate Musical Supplies Limited v. Lazarus Realty Corporation, [1957] R.L.
109 (C.S.) (Montpetit, J.). (This case is commented on in relation to the ground
on which the replacement of a toilet washer is a tenant’s repair in Durnford,
loc. cit., at pp. 490-492).
41 Saad v. Simard, (1913), 43 C.S. 499 (C. Rev.). See also Deguire v. Marchand,
(1878), 1 L.N. 326, 21 R.L. 1 (C. Rev.). In Lefebvre v. Chartrand, (1929), 35
R.L. n.s. 405 (C.S.) (Archambault, J.), the complaining tenant and the defendant
co-tenant were both granted the use of the yard in the rear by their leases.
Plaintiff tenant, on entering the yard, was bitten by defendant co-tenant’s
watchdog. It was held that since the leases conflicted in that both granted the
right to use the yard, the co-tenant having been first put in possession, plaintiff
tenant had no right to enter it and consequently had no claim for damages on
being bitten. Where, however, a tenant has been given the right to run his
vehicles through the courtyard to the rear of the premises of a co-tenant, and
the latter interferes with the complaining tenant’s exercise of his rights, denying
their existence, the landlord is obliged to defend the victim tenant against such
claim of the co-tenant, the same amounting to a trouble de droit: Hamilton v.
The Royal Land Company, (1903), 24 C.S. 411 (C. Rev.).
McGILL LAW JOURNAL
[Vol. 14
the parties to draw their contracts as they see fit, with the tra-
ditional exceptions in favour of public order and good morals (article
13 C.C.) and mandatory provisions of the Civil Code (a rather apt
example might be that article 1509 C.C. prohibits a seller from
excluding warranty against eviction with respect to his own acts),
to which must now be added the new articles on “Equity in Certain
Contracts” (articles 1040a to 1040e C.C.). Thus, clauses in leases
excluding responsibility for the acts of co-tenants are, in principle,
valid.42
However, such clauses do not find much favour before the courts.
It would be too easy for the landlord to collect the rent without
assuming any obligations that should rightfully be his. The courts
have a not inconsiderable arsenal with which to combat such clauses.
In the first place, if the clause is ambiguous, it is interpreted
against the landlord (assuming that it was he who stipulated the
conditions) (article 1019 C.C.). Secondly, where the landlord acqui-
esces in the act of the co-tenant, such as where the latter is remodelling
premises, the lessor is bound because the act has become his fait
personnel.43 The same principle applies where the lessor’s own negli-
gence has caused the damage. 43a Thirdly, the clause will at best
cover a diminution in enjoyment but not an uninhabitability,44 for
it is of the essence of the contract of lease that the landlord must
furnish enjoyment and this obligation cannot be excluded by a clause
in the contract.45
(vi) Where the defendant landlord is a sub-lessor. It has been
held that even if the landlord is liable toward a tenant for the
acts of the co-tenant, the sub-lessor is not liable vis-h-vis his sub-
tenant with respect to the acts of his (the sub-lessor’s) co-tenant
since the co-tenant (as opposed to a co-sub-tenant) obtains no rights
from the sub-lessor, but only from the principal landlord and is hence
42 Lion Fastener Company Limited v. Gross, [1964] B.R. 475. See also Cass.
civ., 16 juillet 1951, J.C.P. 1952.2.6717.
4 3 V6zina v. Scales, (1926), 64 C.S. 49 (de Lorimier, J.); Scott v. Dame New-
comb, [1958] B.R. 778.
43a Mt. Royal Furniture and T.V. Inc. v. Industrial Glass Company Limited,
[1964] C.S. 269 (Perrier, J.).
4 4 Decary v. Normandin, (1933), 71 C.S. 254 (Martineau, J.).
45 Durnford, loc. cit., at p. 499. It has been held in France that limited
clauses of exclusion of liability on the part of the landlord are valid (Cass.
civ. 16 juillet 1951, J.C.P. 1952.2.6717, overruling the Court of Appeal decision
in
the same case: Lyon, 2 dec. 1948, J.C.P. 1949.2.5044), but that general
clauses that practically suppress the lessor’s warranty are invalid (Cass. soc.,
25 oct. 1946, J.C.P. 1947.2.3400). See the note by Paul Esmein, J.C.P. 1952.2.6717.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
13
a third party.46 It therefore follows that it would be unreasonable to
hold the sub-lessor liable. However, if the acts were such as to render
the premises uninhabitable, it would seem that the sub-tenant would
be entitled to resiliation in any event on the overriding ground that
it is of the essence of the contract of lease that enjoyment be furnished.
(c) The conclusions that may be drawn from the jurisprudence.
What conclusions are to be drawn from the foregoing review of
the jurisprudence? The first is that while superficially the courts
are badly split on the question of the liability of the landlord for
acts of co-tenants, since they do not seem to be able to agree on
whether the co-tenant is merely a third party under article 1616 C.C.,
the split in opinion would appear to be more theoretical than real.
When the judgments are examined in the light of the factual back-
grounds against which they were rendered, there is a remarkable
consistency in the outcomes. The judges seem to a large extent to
have been deciding on the basis of whether it would be reasonable
in the various circumstances to hold the landlord liable or not, and
then sometimes seeking t6 justify their solutions on the basis that
the co-tenant is or is not covered by article 1616, which is where
the confusion has arisen. As to the results obtained, the same would
appear to be eminently reasonable.
What can be said to be the principles that underlie the juris-
prudence? They seem to be that the landlord will not be held liable
where he could not be expected to have prevented the act –
thus,
for example, isolated acts, such as a co-tenant causing a pipe to burst,
will not render the landlord liable. Such occurrences could perhaps
be described as fortuitous events. Where, however, the landlord could
be said to have been negligent, such as in failing to show discretion
in the selection of tenants, allowing repetitive acts to continue, or
failing to act on receiving a warning of impending trouble, he will
be liable for the acts of co-tenants. This is a fortiori so where such
acts render the victim tenant’s premises uninhabitable, such always
being a cause for resiliation.
46Lger v. Langelier, (1923), 61 C.S. 421 (Rinfret, 3.)
(it is surprising to
note that the application for the cancellation of the lease was denied despite the
uninhabitability of the premises). Similarly, a tenant will probably generally
not have a recourse against a co-tenant by reason of the act of his sub-tenant;
this was discussed in Thurston V. Dawson, (1908), 17 B.R. 148. On the other
hand, a tenant who is disturbed by the acts of a sub-tenant of a co-tenant has
a recourse in resiliation of the lease against the landlord (Pasquini v. Mainville,
(1917), 52 C.S. 22 at p. 23 (where the results of a preceding action are men-
tioned)).
McGILL LAW JOURNAL
[Vol. 14
Another principle is that the landlord will be held liable where
he is personally involved in the acts. This will occur where he acqui-
esces, by lease or otherwise, in the use made of the premises by
the co-tenant (such as, for example, where the premises are leased
for manufacturing purposes, or he fails to prevent the trouble). He
will similarly be liable where he leases to a competitor in the same
building or area in spite of a clearly expressed undertaking not
to do so.
It would also appear true to say that where there may be doubt
as to the landlord’s liability for the acts of co-tenants, the landlord
will be held liable anyway on another ground, such as that of the
damage being caused by a defect.
What are the views of our authors? The subject has not been
given lengthy treatment. Mignault 47 limits himself to raising the
question as to whether the co-tenant is a third party under article
1616 and refers to French authority to the effect that he is not
since the landlord introduced him to the premises (with the result
that the landlord would always be liable).
Faribault,48 after referring to the division of opinion in both the
French authors and our jurisprudence, states his view as being that
co-tenants are third persons under article 1616, so that landlords are
not liable for their acts. Faribault suggests that a landlord no longer
has any control over his tenants once the premises have been delivered
to them, and that while he may have their leases resiliated when they
exceed their rights, he cannot do so until the acts have been com-
mitted. Thus he fails to see how the landlord can be held to warrant
against acts he could not foresee and could even less prevent. Conse-
quently he would not hold the landlord responsible for a flood resulting
from a tap being left on by a co-tenant, or noise made by him that
prevents sleep.
The situation would be different, he says, where the acts were
continual or frequently repeated without the landlord acting to
prevent them after being put in default, or if the landlord had know-
ingly leased to undesirables. His liability would then rest on article
1612, but would be limited to cases of uninhabitability.
Snow 49 points out that while the landlord will not be liable for
the acts of the co-tenant under article 1054 C.C., he will nevertheless
be sometimes liable for the co-tenant’s negligence; he will be liable
if he leases premises for purposes likely to cause a nuisance, such
47 Op. cit., t. 7, pp. 268-269.
48 Op. cit., t. 12, pp. 103-104.
49 Op. cit., pp. 1.92-197.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
15
as to a drunkard or prostitutes or allows the use of machinery
which causes disturbances.
Snow refers to the debate over the question of whether a co-tenant
is a third person under article 1616 C.C. and feels that the weightier
view is that he is not (so that the lessor would be liable for his acts).
He also suggests, in support of that school of opinion, that by “mere
trespass” (simple voie de fait) is meant the kind of thing referred
to by Pothier, such as acts of theft, whereas in the case of the
co-tenant the act is usually, he says, one of negligence. To this he
adds that the lessor should be responsible since enjoyment is of the
essence of the lease and the use and enjoyment may be impaired or
destroyed by the damages caused by the co-tenant.
Finally, Snow declares that the clause in the lease relieving the
landlord of liability for the acts of the co-tenant is valid only for
diminution of enjoyment (as opposed to loss of enjoyment), and that
the landlord remains liable for his personal act which may result
from a failure to prevent trouble.
From the foregoing review of our jurisprudence and doctrine, we
can only conclude that while the courts have shown a consistently
reasonable approach to the problem of the co-tenant in the light of
the facts of each case, no satisfactory supporting theory has yet been
formulated. It is to this difficult task that we shall now address
ourselves, and in so doing we shall review the position taken by
the French authors and courts.
2. THE DILEMMA OF THE CONFLICTING PRINCIPLES AND A SEARCH
FOR A NEW IAPPROACH.
Since article 1616 C.C. does not furnish us with a satisfactory
solution to the question of whether the landlord is liable toward a
tenant for the acts of a co-tenant, whether or not we say that a
co-tenant is a third party within the meaning of that article, we are
obliged to seek further for a principle. In so doing we shall act on
the assumption that the tenant’s recourse against his landlord is one
that is based on contract.50
Even if one were to admit the possibility of there being a delictual
recourse, it would not be without its difficulties, since a tenant is
Go Paul-Andr6 Crdpeau, Des rigimes contractuel et dlictuel de responsabilit6
civile en droit civil canadien, (1962), 22 R. du B. 501. It is true that the landlord
has been held liable under article 1053 C.C. for damages suffered by a tenant
by reason of the acts of a co-tenant where the landlord has not shown reasonable
care in the selection of such co-tenant (Yonge v. Vineberg, (1914), 45 C.S. 318
(C. Rev.)). While the result of the decision was certainly correct, it is open to
question whether the recourse was properly treated as being a delictual one.
McGILL LAW JOURNAL
[Vol. 14
not normally considered to be the prgpos of the landlord ;51 the latter
will consequently not generally be liable for his acts (as opposed to
the acts of his employees – article 1054 C.C.) unless there is an associ-
ation of interests between them (such as where a quarry is leased
and the owner shares in the profits of its exploitation).r 2
The contractual recourse would have to come within article
1612(3) C.C.: 3
Art. 1612. Le locateur est oblige,
par la nature du contrat:
3. De procurer la jouissance paisible
de la chose pendant la dur~e du bail.
Art. 1612. The lessor is obliged by
the nature of the contract:
3. To give peaceable enjoyment of
the thing during the continuance of
the lease.
In article 1612 we find the very general obligation imposed on
the landlord to give peaceable enjoyment. It is true that the tenant
is not receiving peaceable enjoyment where the co-tenant causes a
flood or operates a bawdy house. Can, however, the landlord be held
liable for this? If he maintains the premises in good repair, heats
them properly and so forth, how can he be made liable if one tenant
bothers another?
If the landlord is to be made responsible for every act of a co-
tenant, the onus on him will be substantially greater than that im-
posed on an employer who hires his employees, dismisses them, and
controls them. The landlord does not directly control his tenants;
51 See, inter alia, Andr6 Nadeau, Traiti de droit civil du Qudbec, t. 8, (Montr6al,
1949), no. 395, p. 348; Vannier v. Larche dit Larch6v~que, (1858), 2 L.C.J. 220
(Badgley, J.); Kieffer V. Les Ecclisiastiques du Siminaire des Missions
(C.S.)
6trangares, (1904), 13 B.R. 89 (P.C.); Mattocks v. Supertest Petroleum Corpo-
ration Ltd., (1941), 47 R.L. n.s. 160 (C.S.)
(McDougall, J.); Dufour V. Roy,
(1885), 11 Q.L.R. 192, 8 L.N. 75 (B.R.); Gruman v. Grothe, (1938), 44 R.J. 462
(C.S.) (Forest, J.); Dupont V. Leaside Engineering Company, (1931), 50 B.R. 91;
Moore v. Nadeau, (1989), 77 C.S. 357 (Verret, J.; a footnote discloses that the
Court of Appeal maintained this judgment). On the other hand, in Bernard V.
C6t$, (1892), 2 C.S. 82, 16 L.N. 87 (C. Rev.), the landlord was held responsible
for the damages caused by a pipe that burst after the upstairs co-tenant had
abandoned the premises in midwinter and consequently had ceased heating them,
the statement being made that the co-tenant was the landlord’s pr6pos6 for this
limited purpose. It would not seem that too much significance should be attached
to this statement.
62 Lachance v. Cauchon, (1915), 24 B.R. 421. The mere fact of the rent being
composed of a part of the lessee’s revenues does not, however, result in an
association of interests rendering the lessor liable for the lessee’s acts: Moore V.
Nadeau, (1939), 77 C.S. 357 (Verret, J.; a footnote discloses that the Court of
Appeal maintained this judgment). This last case may be contrasted with that
of Antecol V. British American Oil Co. Ltd., (1940), 78 C.S. 21 (Forest, J.).
53 The reference to article 1612 is not meant as ruling out other particular
recourses such as, for example, that based on the lessor’s warranty against
defects.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
17
the most he can do is to apply to the courts for resiliation of the
lease. Such application is not well founded unless damage has already
been done, so how could the landlord have prevented it? Moreover,
legal proceedings can be long and drawn out –
is the landlord to
be liable for every further act that occurs pending the rendering of
judgment and until the tenant can be evicted? On the other hand,
would it be reasonable for a landlord to be allowed to plead that
his obligations are limited to the delivery and maintenance of the
premises and that the acts of co-tenants are no concern of his? 54
Where a satisfactory solution has not been evolved in our own
Province, we naturally turn to French authority. La doctrine, gener-
ally and broadly speaking, seems to take the view that where the
co-tenant claims he is authorized by his lease to create a disturbance
(such as by carrying on a noisy trade), this is to be considered as
analogous to a trouble de droit for which the landlord will be liable.
Apart from this, however, the opinion of the French authors seems
to be that the landlord will not be liable unless the acts are re-
petitive, since the landlord does not have control over his tenants.55
The French jurisprudence, especially that of the Cour de Cassation,
not only does not accept the distinctions suggested by the authors, but
is remarkable for its consistently tough line in almost invariably
holding the landlord liable toward a tenant by reason of the acts of
a co-tenant, and this even when the act is an isolated one.56 One of
54 For a general discussion on the intensity of the various types of obligations,
the reader is referred to Paul-Andr6 Cr~peau, Le contenu obligationnel dun
contrat, (1965), 43 Can. Bar Rev. 1.
55 Planiol et Ripert, op. cit., t. 10, no. 495, p. 635, no. 520, p. 704, no. 521, pp.
704-705, no. 526, pp. 717-718, no. 527, pp. 719-722; H., L. & J. Mazeaud, Legons
de droit civil, 2e 6d., t. 3, (Paris, 1963), no. 1115, pp. 910-911; Aubry et Rau,
op. cit., t. 5, no. 366, p. 225, including footnote 37; L. Guillouard, Trait6 du con-
trat de louage, 2e 6d., t. 1, (Paris, 1887), no. 165, pp. 170-171; Ripert et Bou-
langer, TraitM pratique de droit civil, t. 3, (Paris, 1958), no. 1733, p. 572.
5G Paris, 13 ao-at 1875, S. 1876.2.146 (flooding damage due to overflowing of
upstairs co-tenant’s fountain); Lyon, 25 janv. 1881, S. 1881.2.219
(a tenant
leasing residential* premises was disturbed by the operation of a school by a co-
see also Trib. r~gional sup6rieur de Cologne, 19 oct. 1894, S. 1896.4.11;
tenant) –
Cass. req., 16 nov. 1881, S. 1882.1.225 (tenant disturbed by the co-tenant’s burning
of rubbish causing smoke to enter victim’s premises and the shaking of carpets
out of the window causing dust to fall on his flowerbed); Cass. req., 17 juin
1890, S. 1890.1.321 (upstairs co-tenant banged on the floor whenever the victim
tenant had guests in for the playing of music); Paris, 18 janv. 1901, S. 1903.2.78
(a tenant leasing residential* premises was disturbed by the leasing of other
premises to a club); Paris, 5 juillet 1-910, S. 191,1.2.214 (a tenant leasing resi-
dential* premises was disturbed by the leasing of other premises to a sewing
woman who there carried on her business and hung out signs); Cass. civ., 21 mai
1930, S. 1930.1.285 (a tenant operating a workshop was disturbed by a co-tenant
McGILL LAW JOURNAL
[Vol. 14
the few exceptions was made in a case where a tenant fell over a
suitcase left by a co-tenant in the hallway outside the apartment of
the janitor while he went to give instructions to the latter before
departing on holiday; the Paris Court of Appeal held that the landlord
could not be held liable under such circumstances, since the moment-
ary placing of a suitcase in the hallway had no connection with the
lease. 5 However, it is to be noted that this case did not go to the
Cour de Cassation, where the result might have been different in
view of the fact that a landlord was held liable toward a tenant by
that Court for an explosion caused by a co-tenant who turned on
the gas as a means of committing suicide,58 which would appear just
to whom a lease was granted to enable him to exercise his profession of weaver);
(flooding damages due to bursting of
Cass. civ., 20 juillet 1932, S. 1932.1.382
pipe in apartment of upstairs co-tenant); Paris, 22 d6c. 1937, Gaz. Pal. 1938.1.235
(lessor allowed co-tenant to compete in the same line of business as that of the
victim tenant despite a clause in the lease prohibiting competition); Paris, 30
mars 1938, Gaz. Pal. 1938.1.907 (flood caused by co-tenant’s negligence); Cass.
soc., 25 oct. 1946, J.C.P. 1,947.2.3400 (flood caused by upstairs co-tenant); Cass.
civ., 15 mars 1948, D.1948.241 (smoke entered leased premises from stove pipes
on the front of the building that served the premises of the downstairs co-
tenants); Cass. civ., 10 juin 1949, J.C.P. 1949.2.5203 (explosion of gas furnace
in basement of co-tenant operating a patisserie); Paris, 5 nov. 1956, Gaz. Pal.
1956.2.334 (explosion resulting from defective gas pipes); Cass. civ., 24 janv.
1961, J.C.P. 1961.2.12078 (explosion resulting from a co-tenant turning on the
gas as a means to commit suicide); Cass. civ., 29 mai 1967, Bull. civ. 1967.1.184,
(disturbances until late hours caused by the operation of a cafd, including
brawls).
* The adjective used is “bourgeois”, e.g. “habitation bourgeoise”;
in this
connection, see Michel Dagot, La clause d’habitation bourgeoise, J.C.P. 1967.1.2108.
57 Paris, 27 janv. 1955, D.1955.527.
58 Cass. civ., 24 janv. 1961, J.C.P. 1961.2.12078. It is true that the Coutr de
Cassation did dismiss an action by a tenant against a landlord in which damages
were claimed by reason of the loss of a tenant’s moveable effects, it being alleged
that the loss was due to theft on the part of co-tenants (Cass. civ., 1 mars 1960,
S.1961.1.233). However, it is to be noted that the facts of the case rendered
the court skeptical of this allegation. Plaintiff was an Italian who rented a
villa in Cannes in 1938, put effects in it, returned to Italy, and claimed damages
on the ground of theft in 1954. The Italian army had been in occupation during
the war. Apart from the foregoing facts, it would not appear to be in contra-
diction with the rest of the jurisprudence of the Cour de Cassation, which so
readily holds the landlord liable for the acts of co-tenants, to exclude a possible
theft, especially in the light of the circumstances of the present case. The co-
tenant who commits theft is not only not purporting to ,exercise a right under
unlike the co-tenant
his lease –
who turns on the gas to commit suicide, where a facility of the leased premises
is at least being used, thus providing a thread of connection between the person
committing the act and his position as tenant (though this thread is slender
indeed and not particularly logical).
he is stepping right out of his role as tenant –
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
19
as foreign to a tenant’s rights under his lease as the action of a
tenant who left his suitcase outside the janitor’s office while giving
instructions (presumably in connection with the leased premises)
before going away for a vacation. 59
The Cour de Cassation, as justification for its decisions, has taken
the stand that the co-tenant is not a third person under article 1725
C.N., which is the equivalent of our article 1616.0 Consequently the
landlord cannot evade responsibility on the basis of this article, which
is considered as a defence for the landlord only where the third
person is a stranger. Not being able to invoke article 1725 C.N., the
landlord is then faced with article 1719 C.N., which is the equivalent
of our article 1612.01 The court has pointed out that the landlord
has a recourse in warranty against the offending co-tenant for re-
imbursement of the damages he has had to pay. 2 A corollary of this
is that it is no defence for the landlord to plead, when sued by a
tenant on the ground of disturbances caused by a co-tenant, that
in the latter’s lease it was stipulated that he was to avoid causing
a disturbance. The violation by a co-tenant of an obligation imposed
on him in his lease (in this instance, that of not causing disturbance
to other tenants) is not an excuse for the landlord. 63
59 A recent decision seems to have sided with la doctrine rather than with the
Cour do Cassation: Colmar, 27 avril 1966, D. 1967. Somm. 5. This case involved
an agreement whereby the landlord would no longer supply water in the usual
way to a particular tenant, who would thenceforth have to obtain his supplies
from the sole remaining tap in the basement. This tenant, unknown to the
landlord, re-installed a water pipe which froze in the cold weather and caused
water damage to another tenant. The landlord was held not to be responsible
because the tenant had stepped outside of the contractual relationship. It
is
questionable whether the Cour do Cassation would maintain this judgment. See
also Lyon, 10 fdvr. 1882, Gaz. Pal. 1881-1882.2.109.
00 Art. 1725 C.N.: Le bailleur n’est pas tenu de garantir le preneur du trouble
que des tiers apportent par voies de fait h sa jouissance, sans prdtendre d’ailleurs
aucun droit sur la chose louse; sauf au preneur b les poursuivre en son nom
personnel.
61 Art. 1719 C.N. (excerpt):
Le bailleur est oblig6, par la nature du contrat, et sans qu’il soit besoin
d’aucune stipulation particuli~re:
3. D’en faire jouir paisiblement le preneur pendant la durde du bail.
02 This would, of course, only be maintained outside of those instances in which
the landlord had authorized the commission of the disturbance (e.g. the leasing
of the premises for the carrying on of a profession involving noise). An example
of a situation where a tenant will have a claim against a landlord by reason
of the disturbances caused by a co-tenant but where the landlord himself will
have no recourse against the co-tenant is seen in Pasquini v. Mainville, (1917),
52 C.S. 22 (the head note is not on point).
63 Cass. civ., 21 mai 1930, S. 1930.1.285.
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The holding by the Cour de Cassation that a co-tenant will not
be considered a third person under article 1725 C.N. results in an
unusual severity from various points of view. The first is the
landlord’s liability for the damages caused by even an isolated act
of a co-tenant, such as the causing of a flood by the leaving on of
a tap, or the bursting of a pipe through freezing. The responsibility
of an employer for the negligence of his employee is a severe one
that is justified on the basis of the right of the employer to select
his men, to control them and give them orders, and to dismiss them
if he discovers they are unsuitable (he thus has a chance to put
an end to the relationship before something serious occurs). Moreover,
he is only liable where his employee has committed a fault.
Secondly, the landlord, once he has accepted a tenant, has very
little control over him. Moreover, once he discovers he has made a
mistake, how is he to evict him? He may only do so through a
court judgment, and will probably only have the grounds for it once
the disturbances have been made –
that is, too late. Furthermore,
the mere fact of a tenant having caused a single flood would rarely
be a ground for the cancellation of his lease.
In third place must be added the fact that the Cour de Cassation
does not appear to distinguish between acts of co-tenants that consti-
tute fault and those that do not. A landlord may very well, as a
result, be liable even in the absence of fault, in contrast to the
employer.
Fourthly, the flat holding that the landlord is responsible for
acts of co-tenants results in liability being imposed on the landlord
in instances where there is only the remotest connection between
the act and the lease. A blatant example is where the landlord has
been held liable for the damage caused to a tenant by an explosion
resulting from a co-tenant committing suicide by leaving the gas
turned on. 63a
The result of the jurisprudence of the Cour de Cassation is that
the landlord is held to warrant the tenant against the acts of a
co-tenant, with the only effective recourse left to the landlord being
that of claiming reimbursement from the co-tenant, which claim will
only lie in certain instances.
The very strictness of the solution of the French courts is all
the more surprising in that France has long had such rigid rent
controls that it is virtually impossible for the landlord to ever evict
a tenant, and the rent has been kept at such low levels that real
63aSupra, note 58.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
21
estate has in many instances ceased to be a profitable investment, 64
and the view has even been entertained that the landlord is not obliged
to carry out repairs when the cost of the same would be out of
proportion with the rate of rent being paid. 65 This is very different
from the view taken in Quebec, where a landlord is always bound to
carry out repairs when premises become uninhabitable, regardless
of lease stipulations relieving the landlord of his obligation to repair,
as the view is held that enjoyment is of the essence of the contract
of lease, to which may be added an element of public order.66
The mere severity of the rule laid down by the French courts
is not, however, sufficient justification in itself for condemning it
out of hand. 67 Even if the landlord is not able to exercise an effective
control over his tenants, especially with respect to isolated acts,
several powerful arguments can undoubtedly be made in favour of
his always being held liable. Firstly, the proposition can be made
that it is the landlord who should always bear the brunt, even where
he did not authorize the act or was not otherwise responsible for its
happening, since it was he who granted the lease to the co-tenant.
Secondly, one might argue that it is only right that tenants should
have a greater degree of certainty of being able to exercise an effective
recourse, which will be the situation if the landlord is held liable,
since he is more likely to be solvent than the co-tenant and is less
prone to move away leaving no assets. The effect of this is to render
the landlord the guarantor of the solvency of his tenants, as it is
he who will suffer the loss if his proceedings against the co-tenant
in recovery of the damages he has been condemned to pay are
worthless.
Thirdly, it can also be suggested that a person who takes on the
business enterprise of operating an apartment house for a profit
must assume the risks arising out of the management of the same,
and that the acts of co-tenants are included in those risks. In other
words, just as the landlord is liable for defects in the physical prem-
64 Note Paul Esmein, J.C.P. 1961.2.12301.
65 Mazeaud, op. cit., t. 3, no. 1110, pp. 908-909; Planiol et Ripert, op. cit., t. 10,
no. 509 bis, pp. 665 et seq.
66 Durnford, loc. cit., at pp. 499-504.
67 Interesting notes have been written commenting on some of the leading cases,
e.g. by Paul Esmein with reference to Cass. civ., 24 janv. 1961, J.C.P. 1961.2.
12078; Cass. civ., 16 juillet 1951, J.C.P. 1952.2.6717; Cass. civ, 10 juin 1949,
J.C.P. 1949.2.5203; Cass. soc., 25 oct. 1.946, J.C.P. 1947.2.3400; and by Andr6
Tunc with reference to Paris, 27 janv. 1955, D.1955.527.
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[Vol. 14
ises under article 1614 C.C., he is considered as likewise responsible
for defects in the persons of his tenants. 6
Nor is it an answer to the foregoing arguments to say, as do the
French authors (supra), that a distinction should be made between
those instances where the co-tenant is acting or pretending to act
within the scope of the terms of his lease and those where he coni-
mits acts outside of the contractual relationship, with the landlord
being held liable only in the former situations. For the tenant can-
not be expected to know what are the terms of the lease between
the landlord and the co-tenant, or what interpretation will be put
on them by the courts, for these constitute res inter alios acta; nor
will he necessarily know until the plea is filed, if he sues his co-
tenant, whether the latter will even be claiming that his acts were
within his rights under the lease, and additional proceedings against
the landlord may then be necessary. It can be argued that it is prefer-
able to allow the tenant to sue the landlord, and leave it up to the
latter to obtain reimbursement from the co-tenant where applicable.
The foregoing arguments, powerful though they may be, do not
mean that the solution of the Cour de Cassation, that the landlord
is always held liable for the damage suffered by a tenant as a result
of the act of a co-tenant, is necessarily the most reasonable one. It
can be unreasonably harsh in some circumstances, and even ridicu-
lous in others.
Is it just to hold the landlord liable whenever a co-tenant commits
an isolated act causing damage? When we consider that the landlord
has neither the effective right of control nor that of dismissal that the
employer has over his employee and that isolated acts are frequently
unforeseeable
(such as a co-tenant causing a flood by leaving a
tap on), we may suggest that the landlord should not be auto-
matically held responsible in all circumstances. In effect, this would
be rendering him liable for fortuitous events.
6s This, however, overlooks the school of thought that says that the landlord
is only liable for damages caused by defects when it can be shown that he was
aware of them or had been put in default to remedy them. In this connection,
see inter alia, Clerk v. Poissant, (1920), 57 C.S. 528 (C. Rev.); Bernard v. Cym-
balista, [1955] C.S. 434 (A. I. Smith, J.).
Such knowledge, on the other hand, is probably only necessary in order to
make the landlord liable for damages, and not for the resiliation of the lease
alone.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
23
When, then, should the landlord be liable for the acts of co-
tenants ?60 He should clearly be responsible for those acts that disturb
the peaceable enjoyment that are both repetitive and constitute suf-
ficient grounds for him to obtain a cancellation of the lease. Until
the first act has occurred, he is not even aware that the tenant is
an unsuitable one (save in those cases where he has shown im-
prudence in accepting a tenant who is clearly unfit), and until there is
justifiable cause for him to have the lease resiliated (which will not
always result from the co-tenant’s having committed an isolated act),
he is helpless to do anything and should therefore not be held liable.
Thus, where there is an uninterrupted series of acts, the landlord
should be liable when these continue, and up to the time of his taking
action in cancellation of the lease. 71
The foregoing does not mean, however, that the landlord will not
be liable for the consequences of an isolated act of a co-tenant. Hence
where uninhabitability results, the same is always a ground for can-
cellation. Other grounds would include those already applied by our
courts (see supra), such as instances where the landlord has author-
ized the commission of the act either by his lease to the co-tenant or
otherwise, where the landlord has not exercised reasonable care in
the selection of the offending co-tenant, where the trouble can be
said to have been caused by a defect in the premises just as much
as by the co-tenant, where the landlord has been warned of impend-
ing trouble but has not acted to prevent it, and where he has leased
to a competitor despite a clear undertaking not to. In all these in-
stances the landlord will be liable even though only an isolated act
O9 The reader is referred, in this connection, to the discussion on intensities
of the different categories of obligations in Paul-Andr6 Cr~peau, Le contenu
obligationnel d’un contrat, (1965), 43 Can. Bar Rev. 1. One may perhaps be
permitted to conclude that the landlord is subject to an obligation of result, i.e.,
that he will be liable for the acts of co-tenants except where the same constitute
fortuitous events, the burden being on him to establish that the act complained
of does constitute such an event (e.g. that the act was isolated and, in other
respects as well, unforeseeable).
70 If he has shown diligence in taking action, the lessor would presumably not
be held liable for disturbances occurring between the commencement of the action
and the obtaining of eviction following the rendering of judgment, unless it was
a case such as having imprudently accepted a tenant who was clearly unsuitable
in the first place. It is to be noted that the Cour de Cassation, which has taken
a tough line in holding the landlord liable (supra), dismissed a defence that was
based on the fact that the landlord should not be held liable for acts of co-tenants
where those acts were the only grounds on which the landlord could take action
to have the lease resiliated, so that the landlord was helpless until the very acts
for which he was being held responsible had been committed: Cass. civ., 29 mai
1967, Bull. civ. 1967.1.134.
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[Vol. 14
is committed, since he has made himself liable by his own actions
(with the possible exception of a defect for which he is liable any-
way, though not always for the resulting damages).
On what grounds should the landlord be allowed to escape liability
other than that of an isolated act that could not have been foreseen ?
They should be few in number, because the landlord must not be
allowed to evade his responsibility for furnishing peaceable enjoy-
ment; he is in a better position to control the acts of his tenants
than they are able to control each other, and he not only selects them
but also stipulates the conditions under which they will occupy their
premises and knows what rights have been granted to each tenant
and of which the other tenants are not aware. Consequently, while
our courts have not often denied tenants a recourse against their
landlords based on acts of co-tenants without good cause, it is respect-
fully submitted that some of the grounds should only be accepted
with some degree of reserve. In particular, the landlord’s defence
that the damage was due to the failure of the co-tenant to effect
tenant’s repairs would scarcely appear to be a valid ground, for how
is the tenant who has suffered damage to know what are the con-
ditions as to responsibility for repairs contained in the co-tenant’s
lease? It would appear more reasonable not to allow the landlord to
avail himself of such a defence but to reserve to him a right to obtain
reimbursement from the co-tenant who had failed to perform his
contractual obligations toward him.
It would also seem that in only very exceptional cases should the
landlord be able to escape responsibility on the ground that the tenant
should have called the police and laid a charge in the Municipal Court
in order to have a disturbance cease.
Conclusion
Article 1616 C.C., which was designed to absolve the landlord of
responsibility for the acts of strangers not claiming any right on
the property,71 has failed to provide a solution insofar as acts of
co-tenants are concerned. It has frequently been invoked both for
and against holding the landlord liable for the acts of co-tenants, so
that it is largely useless as a guide. It has no reliability, since the
courts seem to decide the cases on the basis of what is reasonable
under the circumstances, and then sometimes invoke article 1616 in
whichever way it supports their judgments.
71 This is subject to the exception of article 1617 C.C., which does provide the
tenant with some recourse where the third party is insolvent or unknown.
No. 1]
LANDLORD’S LIABILITY FOR CO-TENANTS’ ACTS
25
The confusion is not, however, the fault of our courts, for if
article 1616 were applied consistently either in one way or the other
to the problem of the co-tenant, injustice would often result. It would
not be fair to absolve the landlord for every act of co-tenants, for
he is responsible for furnishing peaceable enjoyment to each tenant,
and this will not occur where the landlord does not have any re-
sponsibility for the acts of his tenants. On the other hand, the inequity
that arises from the position taken by the Cour de Cassation that
the co-tenant is not a third party under article 1725 C.N.72 (thus
making the landlord liable for all disturbances caused by him), is
seen in the judgment holding the landlord liable for damages due
to an explosion resulting from a co-tenant’s turning on the gas with
a view to committing suicide.
The solution to the problem of the co-tenant is not to be found
in article 1616. The liability of the landlord for the acts of co-tenants
is based on his obligation to furnish peaceable enjoyment under arti-
cle 1612 (3) C.C. Thus he will be liable for the consequences of such
acts. He cannot be liable, however, for everything the co-tenant does
because, being human, he lacks clairvoyance. He will therefore not
be responsible for isolated acts which he could not reasonably have
foreseen or prevented.
72 The equivalent of our article 161-6 C.C.
