What if your commercial landlord is inflexible and uncooperative and refuses to participate in the new Canada Emergency Commercial Rent Assistance (CECRA) program, reducing your monthly commercial rent in April, May and June, 2020 to a maximum of 25%?
CKL businesses leasing commercial property from an inflexible landlord, and which cannot afford to pay ongoing commercial rent, should consider taking the following steps:
[1] in writing, promptly request your landlord to apply for the new Canada Emergency Commercial Rent Assistance (CECRA) and to relieve you from 75% your monthly rent for April, May and June, 2020;
[2] apply for the expanded Canada Emergency Response Benefit, including if you are self-employed, or you paid yourself dividends from your incorporated small business;
[3] if your landlord refuses to participate in the CECRA, in writing, request your landlord to act co-operatively, reasonably and flexibly, particularly if you are a non-essential business, as specifically directed by both the federal and provincial governments;
[4] in writing, request your landlord to agree to a ninety-day, interest-free rental deferral, with the possibility of further extension depending on the ongoing status of the virus;
[5] if your landlord remains inflexible and it strictly intends to enforce the lease, consider having your qualified lawyer send a letter affirming your position and threatening legal action against the landlord, including the payment of costs;
[6] review your lease carefully for:
(a) a force majeure clause;
(b) health emergency clauses;
(c) liability protection clauses,
and any other clauses that may allow you to argue frustration of the commercial lease and, therefore, absolve you of liability for your obligations, including rental payment;
[7] speak to your insurance broker about the availability of business interruption and any other available insurance that may assist you, including to pay rent, as explained above – consider providing your contact information for the ongoing Ontario class action lawsuit against insurers who have denied this coverage during COVID-19;
[8] if necessary, seek assistance from your lawyer to apply for relief from forfeiture, subject to any further governmental steps that may be taken in the near future to assist you, or the landlord;
[9] if your landlord sues you for any damages, speak to your qualified lawyer about defending the claim based on frustration of contract;
[10] contact your M.P.P. and request that the Ontario government immediately and legislatively, or by other suitable measure, ban the forfeiture of commercial leases from March 15, 2020 until June 30, 2020 (or longer, if necessary, due to the pandemic);
[11] ensure all of your dealings with your landlord are in writing or, alternatively, make detailed notes about your verbal dealings with your landlord (i.e., potential evidence); and
[12] continue to monitor the expanding financial economic responses plans by both the federal and provincial governments, which will continue to change and expand during the pandemic.
For more information from us about the step-by-step guide to assist you, go here:
