Generic filters
Exact matches only
Search in title
Search in excerpt
Search in content
Filter by Practice Category
Business Setup & Contracts
Commercial & Business Transactions
Land Assembly & Real Estate Development
Litigation
Mortgage and Loan Enforcement
Mortgage Syndication
Private Mortgage Closings & Administration
Real Estate Closings & Property Law
Wills, Estates & Tax
Filter by Practice Industry Category
Business & Finance
Estates & Tax
Litigation
Real Estate

Tag: agreement to lease

The Law of Lease Assignments

Earlier we have seen how Goodyear benefited from its lawsuit against Burnhamthorpe. This verdict is compared with the generally accepted good law set out in Corbett v. Plowden over one hundred years ago in Ontario. By asserting its paramount right to possession, Canada Life got the right to terminate the subsequent lease in favour of Goodyear and gave Goodyear the right to walk from its subsequent lease obligations. Such a result apparently is only possible when the mortgage has priority over the lease. So, the mortgagee would take title subject to the lease, if the Goodyear lease had priority.TenancyThe Goodyear lease was not terminated in December 1994 by Canada Life or Goodyear. Continuing as usual, Canada Life demanded rent, which Goodyear paid from January of 1995. Following the decision in Corbett v. Plowden, in the absence of an express agreement as to the term of the lease between the mortgagee and the tenant, the court could impose an annual tenancy on Canada Life and Goodyear, which could be terminated by six months notice. Thus, there was no dispute that the law in Corbett v. Plowden was good law in Ontario.

Read more

Assignment of leases, rents, non-disturbance, and attornment

Assignment and Assumption of Contracts General RulesThe lease is a mixture of benefits and obligations, which can be unilateral or bilateral.  The “assignor”, or a party to a lease, can assign the benefits to a third party, the “assignee” but cannot assign the obligations without the consent of the other contracting party or the non-assigning party. The assignee can assume the obligations without the consent of the non-assigning party, but this does not relieve the assignor of its primary liability for the obligations. Nor does it enable the non-assigning party to sue the assignee for a default. In the event of default, the non-assigning party can sue the assignor who could in turn sue the assignee who had assumed the obligations and either expressly or by implication agreed to indemnify the assignor for the assumed obligations. The point here is that benefits can be assigned without consent of the non-assigning party, but obligations cannot. Nonetheless, if the benefit is expressly not assignable or because of its nature is not assignable, or if the lease provides a mechanism for its assignment, then these express provisions would modify the right of the assignor to assign a benefit. This is known as the Doctrine of Privity of Contract, and it has value in some instances, like other contractual rules, but causes unnecessary complexity and rigidity in relation to assignments.

Read more

Assignment of Rents: Potential Conflicts and Exceptions

In the previous instalment, we discussed the difference between lease and rents and left open the manner of their registration. It is a fait accompli that an assignment of rents could be registered in Land Titles. As the right to get rents is a chose in action, it has to be registered under the P.P.S.A. With regard to an assignment of leases, it could and should be registered normally, because the lease is a property interest. It follows therefore that it cannot be registered under the P.P.S.A.Conflicts So, the question is whether or not to register an assignment of rents against the land. That is when conflicts with the P.P.S.A. begin. Because an assignment of rents is a chose in action and the right to receive rent is personal property, it can be registered under the P.P.S.A. Theoretically, under the P.P.S.A,  an assignment of leases being an assignment of a contract as security for a loan can also be registered.  This is contradicted in Section 4(1) of the P.P.S.A., which states that it does not apply to an assignment of an interest in real property, including a lease of real property. Hence, an assignment of leases cannot be registered under the P.P.S.A. and priority would not be affected by such registration if carried out after all. Priority would be affected by land registrations only.

Read more

COMMERCIAL LEASING: All About Transfers

Involvements of matters relating to assignments are substantial in commercial leasing, as will be seen in this part of our ongoing series.Transfers In respect to assignments, important developments have taken place. This is due to the fact that courts are unwilling to permit landlords to terminate a lease when a request for a transfer is made without providing an opportunity for the tenant to withdraw its request.

Read more

COMMERCIAL LEASING: Past, Precedent, and Future

In the third part of our review of trends in Canadian commercial law, several interesting cases are discussed.Canadian Western Bank v. 702348 Alberta Ltd.This case highlights the aspects examined by the court when parties to a lease fail to meet their fundamental obligations. Two organizations, Telecommunications Research Laboratories (“TRL”) and Alberta Treasury Branch (“ATB”) wanted to terminate their commercial leases

Read more

COMMERCIAL LEASING: Fundamental Breach and Exclusion Clauses

The second instalment in our review of the emerging trends in commercial lease jurisprudence is evident in the lawsuit relating to HREIT Holdings 45 Corp. v. R.A.S. Food Services (Kenora) Inc., where the court held that the new Landlord had lost its right to collect a higher amount of rent due to two reasons: 1) It’s conduct ; and/or 2) It was estopped on the basis of equity.While operating a restaurant in the complex in 1999, the tenant got the previous landlord to agree to waive the increase in basic rent for years 6-10 of the lease. The leased premises changed hands in 2005, and the purchaser became the landlord.

Read more

REAL ESTATE OPTIONS: Is an Option to purchase property marketable on the MLS?

An Option to purchase luxurious real estate is a contract between two parties giving the purchaser the exclusive right (without the obligation) to buy the property. During the term of the option no-one else can buy or sell the property including the owner. For accepting this obligation the seller received and keeps an option fee whether the option is exercised or not. The option holder (buyer) may then either exercise his or

Read more

THE BASICS TO LAND TITLE SEARCHES

A title search is conducted during the process of selling or purchasing or acquiring an interest in a property. Its purpose is to find out:If the seller’s interest in the property is saleable;If there is any right of way or things like that (known as easements) in the property; andIf the property is mortgaged, encumbered, or there are back taxes to be paid, called liens thereon.

Read more

BUSINESS SENSE: Commercial Lease Enforcement & Remedies

The lease enforcement or implementation of the agreement between the landlord and the tenant should be deliberately followed to avoid any conflict and discussion. However, there are instances when the agreement will be defaulted and the remedies or solutions will be taken into consideration. Basically, the purpose of every lease agreement is to ensure a joint benefit for both landlord and tenant. 

Read more

THE BASICS OF A COMMERCIAL LEASE

The global economic recession unavoidably affected the commercial leasing market in Canada. This has caused landlords and tenants to think over their respective bargaining positions when engaging into a commercial lease negotiation. Thus, the approach of negotiating and drafting a commercial lease will inevitably take into consideration the current economic reality of the business world.

Read more