Canadian Lawyer

September 2020

The most widely read magazine for Canadian lawyers

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Page 41 of 51

40 LEGAL REPORT IN A POST-COVID-19 world, leases on commercial properties will need to change and adapt, with both landlords and tenants looking for adjustments when it comes to force majeure and insurance provisions, say real estate lawyers. They also suggest that while courts may be quiet now, a tsunami of litigation is sure to come to resolve land- lord-tenant disputes coming out of the pandemic and provide better clarity on legal obligations. REAL ESTATE Covid-19 sets up review of force majeure in leases Commercial real estate lawyers say courts are quiet now, but expect robust litigation over who bears costs of financial loss, writes Zena Olijnyk "Tenants will think there is always room to improve their lease forms, and landlords will always be looking to strengthen documents to their benefit," says Stikeman Elliott LLP's Michael Witt, a partner with the firm's real estate group in Calgary. He says that tenants especially will start asking that force majeure clauses in their leases cover pandemics and the mandated shuttering of businesses. Nick Barton, an associate with the real estate and financial services group of McMillan LLP in Calgary, says he is getting a lot of calls from clients, landlords and tenants, asking about what the leases say, especially in terms of force majeure. "Landlords are asking about how the force majeure clause captures Covid-19, and tenants are asking is there anything that gets them off the hook or what happens if they try to break the lease." Witt says, "Some force majeure provisions are more properly drafted than others," and

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