You have a disagreement with a company or an individual? Whether it’s a conflict related to the reimbursement of a sum of money or a purchase (price error), an unpaid invoice or the cancellation of a real estate sale, if you want to settle this problem you may need to prepare a demand letter.
This formal letter allows you to explain to the other party what you are accusing them of and what they can do to avoid legal action. The formal notice is an effective legal means of putting an end to a conflict. In this article, you will discover all the necessary advice to write your demand letter.
What is a demand letter?
In Quebec, a demand letter is a legal document in which a creditor reminds, warns and obliges his debtor to do something (or to stop doing something) within a reasonable delay, such as repairs (following material damages) in the context of a construction.
The demand may be for the repayment of a sum of money, the enforcement of the terms of a contract, the cessation of a harmful action, to obtain a certificate or the delivery of a purchased product. It can also be a formal notice for a hidden defect in a house for example. This letter is addressed to the other party in a dispute.
It can be addressed to a company or to an individual, whatever the nature of the dispute and the claims. A demand letter is the last resort before taking legal action.
In the event of a lawsuit, this letter is proof that all possible solutions have been explored for the resolution of the conflict, but without success. It must be sent to the debtor so that you can prove that he or she has received it.
This letter is not required in all situations. The law only requires you to send a demand letter (or similar written notice) in specific cases.
When properly drafted, a demand letter encourages the other party to resolve the problem to avoid legal proceedings by highlighting the severity of the situation.
When you receive a demand letter, you have several options. You can:
- Agree to do what is requested and thus end the conflict;
- Contact the person or his lawyer to contest the demand and suggest negotiation or mediation, for example, to avoid going to court;
- Contact the person or his lawyer to refuse to do what he is asking you to do and explain why;
- Do nothing, which can lead to a lawsuit.
It should be noted that the demand letter is not a simple reminder letter. It has real legal effects:
- Interests and damages can come to make up for the prejudice linked to the delay of the execution of the obligation. These damages push the debtor of the obligation to act as quickly as possible;
- The sender of the letter of formal notice can demonstrate the transfer of the risks of the thing not on him, but on the one who did not carry out his obligation;
- The letter of default is also an important means of proof;
- The creditor may also have his obligation suspended.
An unanswered letter of formal notice can have more important consequences. The debtor can cite that in case of silence on your part, he will seize the court.
The Civil Code of Quebec requires that this letter be in writing and that it give the debtor sufficient time to perform his obligation, taking into account the nature of the obligation and the circumstances.
What is the deadline for sending a demand letter?
When writing the formal notice, you must set a deadline during which the debtor can respond. Once the deadline has passed, you can consider the formal notice unsuccessful. You can then engage in legal proceedings.
There is no legal time limit for formal notices. The law only imposes two conditions. The time limit in a formal notice must be :
- between 8 and 15 working days.
On the other hand, when sending a demand letter is the first step taken to proceed with collection, it is advisable to give the debtor 30 days to comply.
Find a sample demand letter
Who has the right to issue a demand letter?
Any person has the right to send a demand letter, even an individual who is legally incapable (minor, adult under protection or guardianship). It is also possible to be represented by a lawyer, a condominium manager, a bailiff or other.
Demand letter by a lawyer or by yourself?
There is no obligation for a demand letter to be written by a lawyer. However, the letter is more effective when sent by a lawyer and demonstrates your determination and seriousness to the other party.
A lawyer can make your demand letter more accurate and objective. In addition, he or she can make sure that the legal deadlines are met and that the things you are asking for are legal.
Tips for writing a demand letter
The demand letter is a letter of complaint that includes specific mentions and a specific element. It must comply with Quebec’s judicial standards. Here are some tips for writing a demand letter:
- The demand letter must be dated and include the name and contact information of the recipient. Be sure to be careful about the address of the sender and the recipient, because if the mail is not delivered or is late, the entire demand letter process suffers.
- State the nature of your request. You must be specific.
- Ideally, your letter should be marked “without prejudice” to protect you from any statements made in the letter;
- Indicate that in view of the defaults or missed deadlines, your letter constitutes a formal demand that marks the beginning of legal action if the debtor does not provide a solution or a response.
- Clearly state your claim. Specify what the recipient must do to have the dispute resolved (amount still owed, work to be done, replacement of a defective product, etc.).
- Set a reasonable time frame for response and completion of the claim. Note that some solutions may take longer than others. A response time of 10 days is reasonable.
- Include your personal contact information and signature.
It is advisable to send the demand letter by registered letter with acknowledgement of receipt (LRAR) or by a bailiff’s act. This will allow you to confirm that the other party has received your letter. If in doubt, consult a lawyer.
How do I send a demand letter?
You can choose any option to send your letter, but make sure you can prove that it was received. Here are some options for sending your demand letter:
Bailiff
Choosing a bailiff to deliver the demand letter or a lawyer to draft it gives your demand letter more weight.
Registered mail
The idea of sending a demand letter by registered mail is to have proof that the letter was sent and received. The sender must save the proof of receipt issued by the registered mail (Canada Post in Canada) in order to be able to prove that the demand letter has reached its addressee (a judge could require this proof).
In person or by hand
If you choose to deliver a demand letter in person, ask the person you are demanding to sign the document you are sending (it will serve as a receipt). This option is not ideal, however, as it is rare that the person will agree to sign.
Only send a demand letter by email if you can acquire an acknowledgement of receipt or proof that it has been received. Email is a medium that can be easily ignored by the debtor, so the weight and seriousness of the request is less.
In all cases, the sender must always keep a copy of the demand letter and proof of its receipt for his file.
How do I stop a demand letter?
Receipt of a demand letter does not create any obligation on the part of the creditor or debtor. However, the receipt of such a demand letter has legal consequences (up to and including legal proceedings), especially in the case of a debt.
It is therefore strongly recommended to be careful when sending or receiving a formal notice. However, to stop the latter, either comply with your obligations or contest the formal notice.
1. comply with the obligation
There are many reasons for delay. The debtor can respond to the demand letter by explaining his situation to the creditor and showing his sincerity. The creditor will then be likely to grant the debtor a specific and reasonable period of time
In this case, the debtor is relieved of his default and avoids a lawsuit.
2. contesting the notice of default
It is possible to contest a formal notice of default, because it is in fact a call for amicable resolution. It is preferable to inform the creditor by registered letter with acknowledgement of receipt and to specify the reasons for the dispute, in particular:
- A defect related to the nature of the claim which is not certain, liquid and due ;
- The expiration of the prescription period;
- An ambiguous drafting and thus the absence of a clear and precise interpellation;
- The absence of one of the mandatory mentions. The creditor cannot initiate legal proceedings, his formal notice is considered null and void and he risks a penal fine.
A demand letter from a law firm often makes a better impression on your debtor. For more information, do not hesitate to contact the law firm Accident Solution.
