2011 QCCQ 2396, 2011 QCCQ 2396

Réseau immobilier Adresz c. Dontu 2011 QCCQ 2396 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-115207-096 DATE: March 15, 2011 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ RÉSEAU IMMOBILIER ADRESZ 1564, Herron Rd. Dorval Québec H9S 1B7 Plaintiff v.

MIHAELA DONTU […] Laval Québec […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff, Réseau Immobilier Adresz, is suing Defendant, Mihaela Dontu, for $4,966.50, alleging that Defendant refused to sign a negotiated lease and refused to pay its commission. [ 2 ] Defendant claimed the lease did not respect the conditions foreseen by her Promise to lease and therefore she refused to sign it. Defendant presented a cross demand for $5,200.

The evidence: [ 3 ] Defendant and her husband purchased property as an investment, with the intent of renting the premises. Plaintiff concluded an exclusive brokerage contract with Defendant to lease Defendant's home. The asking price for the rental of the property was to be $2,000 per month. Plaintiff found a tenant, from the United States, in the diplomatic service, who was interested in renting the property. [ 4 ] On June 28, 2008, Defendant signed a Promise to lease. The rent foreseen by the Promise to lease was $3,300. It contained a number of conditions.

Article 6.1 stipulated that the employer's approval was required. As well, the Lease had to include a Diplomatic clause, which provided for the lessee's right to terminate the lease with 60 days notice.

Article 6.1 reads as follows: “Conditional upon employer's approval within 3 working days. Lease must contain standard diplomatic clause.” [ 5 ] The following supplementary terms and conditions were added, which provided that although Defendant would receive $3,000 monthly (but for 8 months of the year), she would in fact only receive $1,900; the remainder was to be used to purchase building materials and products for the home: Tenant intends to renovate and improve the home entirely with his own labour with landlord providing materials at his own cost.

Therefore, rent of $3,300 will be paid as follows: -Deposit of $3,300 for July 1st/08 rent -No rent payable in August + September /2008 as well as Many + June 2009 -Rent paid for a total of 8 months, totals $26,400 annually, exceeding landlord's request of $22,800 ($1900 x 12 mos) by $3,600/year, which tenant expects landlord to use towards materials for the home such as paint, flooring, blinds, etc.

(…) -Each subsequent year of lease will follow the same payout

schedule as above.” [ 6 ] Defendant had signed the Promise to lease but refused to sign the actual Lease.

According to Plaintiff, other people had been interested in renting the property and in particular, a person named Laura Mittens, who had seen the premises with one of Plaintiff's real estate agents. [ 7 ] Plaintiff contends after Defendant refused to sign the Lease, she then rented directly to Laura, bypassing Plaintiff, despite the fact that the brokerage contract between Plaintiff and Defendant was still in effect. [ 8 ] Defendant maintained that she refused to sign the Lease because she had insisted that it contain the supplementary conditions but Plaintiff had refused to include them, thus breaching its agreement. [ 9 ] Defendant explained she has to pay tax on the revenue received and consequently the Lease had to reflect the actual amount that she would receive.

However, the Lease foresees that she will receive $3,300 per month when in reality, she would only receive $1,900. The difference would be applied to the purchase of building materials and other home materials, which she undertook to provide to the tenant and which amount to $3,600 per year. [ 10 ] According to Defendant's real estate agent, the condition regarding the employer's approval was not respected. The supervisor of the potential tenant did not accept the lease’s terms. In addition, Defendant's husband who is the co-owner of the property never signed the Promise to lease.

Analysis: [ 11 ] Plaintiff is claiming a commission of $4,996.50 for having found a tenant who wished to rent Defendant's property. It may be noted that since the commission is split between agents, the amount that can be claimed by Plaintiff is half this sum. [ 12 ] Plaintiff submits Defendant refused to sign the lease, since she had rented her home directly to another person, named Laura Mittens, while the brokerage contract was still in effect, a fact Defendant denies.

Plaintiff, however, is not seeking any other commission that may be payable during the contract's term. [ 13 ] Defendant contends she did not sign the lease since Plaintiff refused to include the supplementary conditions. Plaintiff denies this allegation and claims the supplementary conditions were attached to the lease. [ 14 ] While the end of the Lease reads: “Subject to attached clauses” , no clause or document was stapled to the original of the Lease and the Lease does not specify what clauses apply. In addition, there is no reference in the

section entitled “rent” to the supplementary clauses. [ 15 ] The Promise to lease specifies the employer's approval must be obtained and the lease must contain the standard diplomatic clause. [ 16 ] Again, there is no evidence that this clause was attached to the original Lease or that it formed an integral part of the Lease. As for the employer's approval, no evidence of such approval was presented to the Court. [ 17 ] In sum, the obligation, by Defendant, to execute a lease was conditional upon the fulfillment of certain conditions. The conditions have not been met. In accordance with

article 1497 of the Civil Code of Quebec , the obligation is extinguished; there is therefore no requirement for Defendant to sign the lease. Accordingly, the Court cannot grant Plaintiff's claim. [ 18 ] As for the cross demand, since no evidence was presented, this claim is not retained. FOR THESE REASONS, THE COURT: DISMISSES Plaintiff's action; DISMISSES Defendant’s cross demand; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q.

Date of hearing: February 7, 2011