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w w w . C A N A D I A N L a w y e r m a g . c o m A u g u s t 2 0 1 4 23 or to what extent, the property has changed — either through improvements, damage, or deterioration. Coupled with establishing the base- line property condition, he notes leases typically provide landlords with a right to inspect the property from time to time. Those inspections are an opportunity for the landlord to identify issues before they develop into larger problems. While there is always some wear and tear, if there are concerns, the landlord has the onus of proving there is damage. It's then up to the tenant to prove the damage was a result of reasonable wear and tear. A security deposit can help the land- lord reduce its exposure to damage repair costs, but Gold points to 1299746 Ontario Inc. v. 784481 Ontario Inc., which found a landlord couldn't use the security deposit since the lease referred to the tenant's obligations during the term, not end- of-term obligations like restoring the premises. The lesson, says Gold, is to incorporate language into the security deposit clause to include both during and end-of-term obligations. A problem may occur, however, if the security deposit is confused with last month's rent. For many, they are considered as one. But that one payment may well be used for last month's rent, leaving nothing for security. So there is no money left to draw to cover the costs of damage caused to the property by the tenant. "The lease should provide for a rent deposit for first and last month's rent in addition to a secu- rity deposit," says Gold. Often, it is dependent on the leverage either the tenant or the landlord has. A large retail client may not agree to provid- ing both a security deposit and the last month's rent, but there are situations where it can be negotiated, says Natalie Garton, a solicitor with the Vancouver, B.C., com- mercial real estate firm Terra Law Corp. The security deposit also doubles dur- ing the course of the lease term for both financial default and non-financial default. So if the tenant doesn't pay rent within the subscribed period or if the landlord sees damage that needs to be repaired, the landlord can use money from the deposit. "With a deposit clause you'll want the abil- ity to use that," says Garton. If it is used, the tenant is obliged to replenish the deposit to cover possible defaults throughout the remainder of the term or at its conclusion, she adds. Louise Boutin typically represents ten- ants in her real estate work with Langlois Kronström Desjardins LLP's Montreal office and often finds herself searching for the intent of the lease at the end of a term, particularly a lengthy one. Sometimes, she says, negotiations are required at the con- clusion of the relationship to clarify the responsibilities of both the landlord and the tenant to contain conflict. She has come across leases dating back to the 1960s that, over the years, have been renewed, extended, or are adopted when a new company assumes existing leases, as Wal-Mart did when it took over former Woolco premises in Quebec. Or a landlord might use a standard lease. "Either the par- ties come up with a proposed solution, or then end up in litigation. . . . Because we're talking about a negotiated contract, who can change that contract is the same two parties," she concludes. Let experts guide you through the substantive and procedural law governing the law related to litigation involving the Federal Crown. The Annotated 2014 Crown Liability and Proceedings Act includes the full English and French text of the Crown Liability and Proceedings Act, section-by-section commentary, digests of all relevant judicial decisions, and cross-references to related legislative provisions and secondary sources. You'll find expert analysis of the vicarious liability of the Crown, the nature of duties owed by the Crown, the limits on the availability of injunctive relief, and the immunity of the Crown and its agents from provincial legislation. And you'll get all the significant case law so you'll know exactly how the legislation has been applied by the courts. With a copy of The Annotated 2014 Crown Liability and Proceedings Act by your side, you'll be confident you're interpreting the legislation correctly. And you'll be certain you understand all the latest developments and cases that could impact your claim or defense. Get expert Guidance on the law GoverninG litiGation involvinG the federal crown New editioN The AnnoTATed 2014 Crown LiAbiLiTy And ProCeedings ACT ThE hon. Mr. JusTiCE DonALD J. rEnniE, BriAn J. sAunDErs, MiChAEL h. Morris, AnD JAn BrongErs AvAilAble Risk-FRee FoR 30 dAys order online: www.carswell.com Call toll-Free: 1-800-387-5164 in toronto: 416-609-3800 order # 985555-65203 $190 hardcover approx. 300 pages December 2013 978-0-7798-5555-1 Shipping and handling are extra. Price subject to change without notice and subject to applicable taxes. 00216ZZ-A44938

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