CANADA Law and Practice Contributed by: Rachel V Hutton, Michael L Dyck, Mario Paura and Patrick Morin, Stikeman Elliott LLP
6.20 Registration Requirements In common-law jurisdictions, tenants are typi - cally permitted to register evidence of their lease against title to the subject lands in the relevant land registry, although, other than in Quebec, the lease may allow the landlord to prohibit registra - tion. Depending on the jurisdiction, the actual lease agreement, a caveat/notice of lease or a short form of lease can be recorded on title to the subject lands. Upon the registration of a lease, transfer tax may be payable in British Columbia and Ontario. Generally, the tenant is responsible to pay such transfer taxes. In Quebec, a lease with a term that exceeds 40 years, inclusive of renewals, triggers transfer duties. 6.21 Forced Eviction A tenant may be forced to vacate leased prem - ises in the event of default. Leases often provide that a breach must be material and go uncured beyond a specified grace period before the ten - ant can be dispossessed. In addition, in most jurisdictions a landlord is required to serve notice, specifying the breach and allowing a reasonable period to remedy the breach before they may re-enter the premises. In response to the COVID-19 pandemic, eviction moratoriums were also instituted by most prov - inces, all of which have now concluded. 6.22 Termination by a Third Party A lease may be terminated by government or municipal authorities pursuant to legislative authority relating to expropriation (ie, public taking) or condemnation of land. In such cases, compensation will depend on the relevant legis - lation and both the landlord and tenant may be compensated. In some jurisdictions, a lease for a term long - er than three years may become invalid, and
therefore terminated, if a bona fide third party acquires a landlord’s interest for value without notice of the lease. In such instances, however, equitable considerations may prevent an out - right termination. 6.23 Remedies/Damages for Breach In the event of a breach of a commercial lease, a landlord typically has four primary remedies: • to refuse to accept the repudiation or breach and insist on performance of the lease, in which case the landlord may sue the tenant for rent or damages while the lease exists; • to accept the tenant’s repudiation of the lease and terminate the lease, retaining the right to sue for rent due until such termination, or for damages accrued up to the date of termina - tion for previous breaches; • to give notice to the tenant that the landlord wishes to re-let the premises on the tenant’s account and re-possess the property on that basis, and sue for shortfall in rent where it occurs; and • to terminate the lease on notice and re- possess the property while reserving the right to sue for prospective damages for the unexpired term of the lease (including unpaid future rent). The exercise of the remedies available to the landlord is subject to the principles of com - mon law. The primary restriction on the landlord is its duty to mitigate damages. In addition to common-law requirements, legislation in some jurisdictions also restricts how a landlord can exercise its right to distrain, prescribes notice requirements, and may provide a tenant relief from forfeiture. A landlord will often hold a security deposit to secure future payment and performance of obli -
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