CANADA Law and Practice Contributed by: Rachel V Hutton, Michael L Dyck, Mario Paura and Miguel Manzano, Stikeman Elliott LLP
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
tions to approve a transfer, the fallback will be the Civil Code of Quebec, which is ordinarily very tenant-friendly. Commercial leases may also give the landlord the right to terminate the lease upon a request for assignment, sublet or change of control, or to otherwise impose conditions on the granting of a consent. 6.19 Right to Terminate a Lease A landlord will typically have the right to termi - nate a lease upon the tenant’s failure to pay rent, upon another material breach that is not cured within a specified time, upon the tenant’s insol - vency, and upon substantial damage or destruc - tion of the leased premises/building. Tenants typically either have no right to terminate a lease or may only do so in limited circumstances, such as upon damage or destruction of the leased premises. Where a tenant negotiates an early termination right, fees will often be payable, including for example based on the unamortised value of leasehold improvements paid for by the landlord. 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.
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