www.canadianlawyermag.com 27
Even where there is a force majeure
clause in a tenancy agreement, he says, they
will generally not forgive payments of rent
and will find that the allocation of risk is on
the tenant.
Real estate buyers can also protect them-
selves in their relationships with tenants
through their purchase agreements, says
Patrick Gordon, who practises real estate law
with Blake Cassels & Graydon LLP in Toronto.
"What we've counselled our clients is [to]
take every deal on its own [and] try to build
in as much flexibility as you can," he says. "If
there's a particular thing you're worried about,
if you're buying an asset and there's a tenant
[about which you may have concerns], rather
than relying on a force majeure clause . . . put
it in the purchase agreement instead," he says.
Specifically, contemplating any concerns in
the purchaser agreement lowers the risk to the
purchaser, he adds.
Clauses or provisions that clients may look
at differently now include co-tenancy clauses,
Gordon says, in which a tenant has a right to
"We're still seeing new commercial
leases being entered into, there's still
market activity and the pandemic hasn't
prevented things from getting done."
Patrick Gordon, Blake Cassels & Graydon LLP
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stop paying rent if their co-tenant leaves.
"There's a higher degree of 'anything is
possible' these days," Gordon says. Largely
in response to the SARS outbreak, some
landlords started to add pandemic clauses
to their leases to relieve them of obligations.
Likewise, tenants, who are balancing being
