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REAL ESTATE "all the ills that might arise without interfering with the rights of those big enough to look after themselves." To a layperson, it would seem like stat- ing the obvious to say that tenants have an obligation to pay their rent, but this is one of several basic conditions of a lease that are left implicit in the existing legis- lation and in common law. Similarly, the proposals call for explicit terms that will allow the landlord to regain control of the property if the rent is not paid and require tenants to pay for damages they cause, unless these damages are covered by the landlord's insurance. Smythe notes that the proposals also address some tricky issues arising from the historical differences between prop- erty and contractual law. Whereas a con- tract generally binds all parties to uphold all the terms of the contract, the various covenants in a lease have historically been considered to be independent of one another. So, for example, a landlord could be in breach of a contract if he doesn't keep the building in good repair and the tenant may therefore refuse to keep his end of the bargain by paying rent. Under the historical interpretation of a lease, however, it could be argued that the tenant must still pay rent, even if the landlord fails to repair the build- ing. The BCLI proposals try to resolve any uncertainties on this issue with a stipulation that "contractual principles apply" to rights and obligations under a commercial lease. The consultation document also pro- poses a streamlined dispute resolution procedure to replace the cumbersome process involved in going to court over MOVES AND SHAKES HAS MOVED ONLINE If you or anyone in your firm has made a move, won recent acco- lades, or done anything else note- worthy that should be shared with your colleagues across the country, let us know. E-mail your moves and shakes to moves@clbmedia.ca. We'll be updating the web site daily, so keep your eyes on www.canadian- lawyermag.com to see what your friends and colleagues are up to. a breach or default in a lease. As Smythe explains, under the existing law, if a ten- ant is in default and refuses to leave the premises, the landlord must go to court to obtain a summons and the tenant can then challenge the summons, before substance of the matter is heard in court. The proposed new rules, however, simply involve making an application and then having both parties show up in court. Under the streamlined process, Olson observes, a tenant who is complaining that a landlord has failed to plough the parking lot during a snowstorm may have a chance of seeing the matter resolved before the snow has melted. Olson says members of his committee could not reach a consensus on what to propose with regards to the right of distress whereby a landlord is allowed to seize the property of a tenant who hasn't paid the rent. One option is to abolish this right on the grounds that it is seldom used and can easily be abused. The other is to preserve it, but set clear rules on who can seize what property, when, and how. In any event, it's a right that landlords are usually reluctant to enforce because tenants who can't pay their rent will probably also have other obligations, such as liens or tax arrears that will take precedence over their obligations to the landlord. However, as Smythe observes, the threat that a landlord may exercise this right "is a powerful incentive to ten- ants to pay their rent on time." Smythe believes that B.C. legislators will have the political will to implement the proposals once they are finalized. He says it would be a big mistake to pass up this opportunity to update an obsolete law. "Commercial leasing is an incred- ibly important part of the economy and to have a statute which is impenetrable and doesn't address modern concerns isn't very helpful," he says. Freelance journalist and business writer Kevin Marron can be reached at kevin@ kevinmarron.com Editor-in-Chief Harvey M. Haber, Q.C., LSM and numerous leading experts as contributors Covers commercial leasing issues with specific emphasis on shopping centre leases in one text Shopping Centre Leases has been considered the definitive text on the subject since its inception in 1976. Revised and updated, by leading commercial leasing practitioners from across Canada, this Second Edition includes a vast collection of articles and precedents on various topics of current interest. For example: • Technology and Telecommunications Concerns • Pandemic • Preparedness for Building Owners and Managers • Insurance for Shopping Centres • Leasing Aspects of the Franchise Relationship • Transfers of Lease, Assigning, Subletting and Change of Control • Operating Costs and other Additional Rents in a Commercial Lease from a Landlord's and Tenant's Perspective • Agreements to Lease, Letters of Intent and Term Sheets Carefully prepared this resource includes a number of precedent documents, a table of cases and relevant articles under each of these sections: • The Lease • Financial Considerations • Statutory Considerations • Rent and Expense of Operation • Operation of Business • Maintenance and Operation of Centre • Default • Precedents Order your copy today! Hardbound • 1,108 pp. December 2008 • $185 P/C 0279010002 • ISBN 978-0-88804-477-8 For a 30-day, no-risk evaluation call: 1 800 263 2037 or 1 800 263 3269 www.canadalawbook.ca Canada Law Book is A Division of The Cartwright Group Ltd. • Prices subject to change without notice, and to applicable taxes. CL0309 www. C ANADIAN Law ye rmag.com M ARCH 2009 21 Haber_shopping centre(CL 1-3sq).indd 1 2/11/09 12:22:20 PM