Canadian Lawyer

22 A u g u s t 2 0 1 4 w w w . C A N A D I A N L a w y e r m a g . c o m rejected. "The reasonable wear and tear of an industrial facility will differ from that of an office building and so the permitted use of the premises becomes relevant to assessing the rea- sonableness of the exception," says Spotswood. Problems at the end of the term can be avoided if the ele- ments that may well be of concern to the landlord can be addressed right at the beginning. Anticipating the possibilities at the start of the relation- ship can go a long way to avoiding conflict down the road. The landlord can also build in some protection by having a good record on the condition of the premises at the beginning of the term For an existing property Adam Merrick suggests it is important during lease nego- tiations that the landlord and tenant agree on a standard of repair, setting out the parametres of repair including any excep- tion regarding reasonable wear and tear, spelling out the tenant's responsibilities and diffusing any future disputes. Doing a property inspection together and chroni- cling the state of the property through video and photographs can also be part of that process. "The parties have to be on the same page," says Merrick, an Edmonton- based partner at MacPherson Leslie & Tyerman LLP who has just completed his term as co-chairman of the commercial property and leasing subsection of the Canadian Bar Association — Alberta. In Canada the standard of repair is typi- cally measured at the start of the lease. So knowing what the condition of the prem- ises is at the beginning of the term and hav- ing a record of it goes a long way to determine what the necessary condition should be at the end of the term. Although the tenant is not held to a standard of perfec- tion — that's where the excep- tion of reasonable wear and tear comes into play — each situation is fact specific. Merrick says negotiations at the start of the lease should cover various items and avoid vague references, ensuring the tenant's obligations are clear. "The parties should set out in the lease what the requirements of the repair are or are needed and set out exactly what that means," such as listing defects, he says. "They can contractually have control at the start of the lease and lay it out." Darrell Gold, a partner at Robins Appleby LLP who leads the leasing com- ponent of its real estate group, says, "Being proactive is, ultimately, cheaper than being reactive." Developing a baseline of both the property's land and the buildings at the start of the lease allows both parties to refer back when the lease ends to determine if, rEaL EstatE early steps to avoid landlord-tenant disputes • Landlord and tenant can inspect the property together • Take pictures, video, and notes to chronicle the condition of the property • Anticipate and address potential problems at the start • Clarify the tenant's responsibilities • Ensure the lease clearly addresses expectations and exceptions collinsbarrow.com Clarity that goes beyond Every reasonable doubt From one team of professionals to another, when you or your clients are talking audit, tax and advisory solutions, the right counsel is essential. >P[OVɉJLZMYVTJVHZ[[VJVHZ[*VSSPUZ)HYYV^WYVMLZZPVUHSZ VɈLY`V\[OLPUZPNO[ZHUKVWPUPVUZ`V\ULLKJVTIPULK^P[O VIQLJ[P]LHJ[PVUHISLHK]PJL[VOLSWTH_PTPaLVWWVY[\UP[PLZ PU]PY[\HSS`L]LY`HYLHVMI\ZPULZZ For clear-cut expert advice, call Collins Barrow. Untitled-9 1 14-07-15 2:29 PM

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