Written By: Katherine Grossi, Esq.
Houser Henry & Syron LLP
Your client’s business has flourished and it is poised for new challenges and expansion. It has decided to expand and capture demand in a target market outside of your country. Product is ready, recruitment is in progress, and your client has identified the perfect location to set up shop – Ontario, Canada.
Determining whether to lease or buy space in this new territory is one of the first decisions your client will need to make. Any person purchasing commercial property in Ontario will be required to pay land transfer tax on the purchase price of the property. The purchase will also be subject to 13% tax known as Goods and Services Tax/Harmonized Sales Tax (GST/HST).
In our experience, most businesses setting up shop in Ontario initially choose to lease. As a result they will need advice from a lawyer knowledgeable in commercial leasing laws in Ontario.
Before your client gets the keys to its new office or retail space, it is important to ensure that the commercial lease has been carefully reviewed and negotiated. A grey area can mean extra costs or misunderstandings regarding the space your client is entitled to use. Making sure these grey areas are eliminated is essential to the success of your client’s venture.
Here is a list of issues we will consider when negotiating your client’s lease in Ontario:
1. Commercial Tenancies Act (Ontario)
Commercial leases are governed by the Commercial Tenancies Act (Ontario), the common law and the lease agreement. The application of the Commercial Tenancies Act (Ontario) is somewhat limited because landlords and tenants in Ontario are treated as sophisticated commercial parties, meaning that landlords and tenants are free to negotiate most of their own terms. A written lease agreement signed by the parties can take precedence over the Commercial Tenancies Act.
2. Offers to Lease
Sophisticated landlords will usually require tenants to enter into an offer to lease to secure the tenant. Such offers to lease will set out the main terms of the lease agreement – the location, the term, the rent, the extra costs, the options to renew, the use of the space, whether a security deposit is required, insurance requirements, assignment and subletting rights.
It will also usually provide that the tenant will sign the landlord’s standard form lease so long as the terms set out in the offer to lease are incorporated into the agreement. Therefore, it is important that any offer to lease be reviewed by legal counsel and negotiated thoroughly before it is signed. If a tenant does not negotiate specific requirements at the offer to lease stage, it will have a difficult time negotiating changes to the landlord’s standard form of lease.
3. Boundaries: What space is included in the lease?
Never assume entitlement – we will need to make sure that the lease agreement clearly identifies the area being leased, including the relevant square footage. Most leases will include a diagram depicting the space being leased.
If a tenant is leasing in a shopping mall or large building, we will also need to address “common elements,” such as the hallways between units or storage areas for garbage. If there is a parking lot and a tenant needs a certain number of parking spots, this should also be clearly addressed. It is not uncommon for a landlord to charge extra for each dedicated parking spot, especially in major city centres.
4. Responsibilities: What obligations does each side have?
The most obvious obligation of a tenant is to pay rent. Another important obligation is repairs and maintenance. Tenants will generally be responsible for carrying out and paying for maintenance and repairs to the space, with the exception of elements relating to the building’s structure (such as the roof and foundation).
Tenants should keep in mind, however, that even if the landlord is responsible for carrying out the repairs and maintenance to the structure, the landlord often downloads these costs to tenants as additional rent.
Tenants should similarly pay attention to who is required to maintain and repair heating, ventilation and air conditioning (HVAC) equipment, and who pays these costs. Additionally, the commercial lease should specify who will be paying the property taxes, insurance and utilities, such as water and electricity.
5. Remedies: What options does each side have if the other side is not fulfilling its obligations?
Landlords generally have much stronger remedies against defaulting tenants than tenants have against defaulting landlords. The most common example of a party not fulfilling its obligations is a tenant failing to pay rent. In Highway Properties Ltd. v. Kelly, Douglas and Co. Ltd., the Supreme Court of Canada held that a landlord has four options when a tenant has not paid its rent:
If a tenant misses a rent payment, its landlord will choose the remedy that is most advantageous to the landlord. The tenant also needs to be aware that landlords have the remedy of “distress” which allows the landlord to seize and sell the tenant’s assets located in the leased space to satisfy rent owed.
A tenant will usually be prohibited from holding back rent if the landlord fails to fulfill its obligations, as lease agreements usually provide that the tenant cannot set off any claims it may have against rent.
6. Dollars and Cents: What is the real cost of leasing the space?
Unlike residential leases, commercial leases are almost always subject to tax. In Ontario 13% tax, known as the GST/HST, is charged monthly on rent.
As counsel, we will need to explain to the client the difference between a gross lease and a net lease to advise the client accordingly.
A “gross lease” is one in which the tenant pays a single amount which covers both rental of the space and all other associated costs, such as property taxes, maintenance and insurance. A “net lease” is one in which the tenant pays one amount for rental of the space (usually called “base rent”) and another amount for all other associated costs (usually called “additional rent”).
For budgetary purposes, a tenant may wish to obtain an estimate of additional rent from the landlord before entering into a lease agreement. Base rent is fixed for the term. Additional rent, however, can fluctuate, particularly if property taxes increase or if a major repair or replacement is completed at the property (e.g. a parking lot is re-paved). Because landlords want to be fully reimbursed for costs incurred (especially if those costs increase), most commercial lease agreements are net leases.
Because most lease agreements provide that the landlord can charge any costs incurred back to the tenant, you will also need to make sure that the lease agreement requires the landlord to amortize the cost of significant capital repairs or replacements over the life expectancy of such repair or replacement. The tenants of a property should not be required to cover the whole cost of a significant capital repair (e.g. a new roof) all at once, especially if they are not going to be a tenant at the property for the whole life of the new roof.
Tenants should be wary of “management fees” or “administrative fees” which are fees charged by the landlord for managing the property. These are usually a component of the additional rent.
In addition, your client needs to be advised that commercial leases are not subject to rent control. If there is no current lease agreement between the parties, the landlord is entitled to increase rent by any amount and at any time.
7. Duration: What is the length of the lease?
The term will be outlined in the lease agreement, often with the set base rent for each year of the term.
In general, the shorter the lease, the higher the rent. Landlords usually prefer a longer term for many reasons. Shorter terms can increase the potential vacancy periods for the landlord and landlords usually pay broker fees for obtaining new tenants. Tenants can also benefit from longer leases because the rent they negotiate and lock into now could be much lower than the fair market rent later in the term.
The commercial lease should also discuss extensions to the term. Renewals and extensions are particularly important to tenants if they have spent time and money renovating the space for their purposes and their businesses become successful and they establish valuable goodwill operating out their current location. If the lease does not include an option to re-new or extend, the landlord will be in a strong bargaining position during the negotiation of a subsequent lease because the tenant will not want to lose the value of its renovations, its goodwill, or incur the costs of moving.
Commercial tenants do not have an automatic right to occupy the leased space after the end of the term. If the landlord does not want the tenant to stay after the end of the term and asks the tenant to leave, but the tenant refuses (or “overholds”), the landlord is usually entitled to charge one and a half times the usual monthly rent for every one month the tenant continues to occupy the space. The landlord can also proceed to have the tenant evicted.
8. Security Deposits & Guarantees: Are they usually required?
This depends on the respective bargaining power of the parties. However, it is common for landlords to require pre-payment of the first and last month’s rent when the lease is signed. It is also common for landlords to require personal guarantees if the tenant is a corporation.
9. Termination: How can the lease be terminated?
A lease agreement can be terminated at any time with the consent of all parties. However, landlords will rarely allow a tenant to terminate a lease.
As noted in section five above, landlords will have the option to terminate a lease early if the tenant defaults on paying rent. Sometimes a lease agreement will specify other tenant “acts of default” which could entitle the landlord to terminate early. The landlord will generally be required to give the tenant notice if it plans to terminate the lease.
If the lease is for a fixed term, then the tenant will likely need to fulfill its obligations for the full term.
10. Other issues: Improvements, assignments and other items
(a) Leasehold Improvements
Tenants are generally required to leave the space in the same condition as when they moved in, except for reasonable “wear and tear.” This includes removing any leasehold improvements if the landlord requires their removal. If the tenant wants to renovate the space for its specific use, this usually requires the landlord’s pre-approval and sometimes a supervision fee. If the tenant has some bargaining power, they may be able to negotiate a “fixturing period”, which is a rent free period of time for the tenant to renovate the space. Landlords may be willing to provide a fixturing period if the renovations add value to the property and the lease is for a longer period.
(b) Assignments and Subleases
Assignments and subleases are generally permitted, unless the lease agreement prohibits them. A landlord will generally want to restrict assignment and/or subletting to parties approved by the landlord. A tenant will generally want to ensure it has some assignment and/or subletting rights.
Lease agreements usually set out restrictions on the use of the leased space. Use is an issue that must be considered on an assignment. A landlord can agree to a change of use, but is not required to do so and will not do so if it has granted exclusivity to another tenant in the property and the proposed assignee operates a similar business.
Most lease agreements permit landlords to assign their rights and obligations to another party without the tenant’s consent. When a landlord assigns its rights and obligations, it is also usually relieved of any future liability to the tenant. Typically, tenants are not granted the same release. Most landlords require the original tenant to remain responsible under the lease until the end of the term.
(c) Notice of Entry
Leases usually provide that a landlord must give a tenant notice if the landlord wishes to enter the leased space. As the tenant’s counsel, we will want to negotiate a reasonable notice period and/or require the landlord to enter the leased space outside of regular business hours, so as to avoid disrupting the tenant’s business operations.
Tenants should not overlook the importance of adequate insurance coverage, and should discuss this issue with their insurance advisors before signing. Tenants are usually required to obtain insurance which covers both the tenant and the landlord.
We have written this article to identify key issues tenants should be aware of when entering into a commercial lease in Ontario. If your client is contemplating leasing space or in the midst of negotiations, please give us a call and we’ll guide you through the process. For more information on this topic, please contact Katherine Grossi at 416.860.8069 or firstname.lastname@example.org.
This publication provides an outline of issues for business professionals to consider. The content should not be taken as legal advice. It is not exhaustive and is subject to change. Please consult with an HHS lawyer for information or advice specific to your situation.