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REAL ESTATE McCallum says Canada's insolvency legislation is very different from U.S. laws in this regard, since U.S. bankrupt- cy trustees are allowed to sell properties free and clear of leases, "and if you're a tenant, you're out of luck." Of greater concern to tenants in Canada, when their landlord goes bankrupt, is what will happen after a new landlord acquires the property, says McCallum. For this reason, ten- ants are always advised to ensure that subsequent purchasers have notice of lease agreements. They should also get non-disturbance agreements from the landlord's lenders and get notice of the lease registered on title, he says. And what can landlords do to pro- tect themselves against a tenant going bankrupt? In light of the insolvency law amendments, says Grignano, "There's unfortunately not much you can do." Grignano's only suggestion — and one TitlePlus_CL_Jan_10 12/15/09 10:00 AM Page 1 he admits is of questionable value — is to put more restrictions in the lease on the types of use that are not permitted. This might help with a few more arguments in court and establish a few roadblocks in the event that the trustee assigns the lease to an unsuitable tenant, but ultimately the new legislation will likely override the landlord's challenge, he says. Litigator Brendan Bissell, an associ- ate at Goldman Sloan, agrees. If the lease contains exclusive enough lan- guage, a landlord's lawyer could argue the lease is not something that is assign- able by its nature, he says. However, he adds, this is an argument that could best be leveraged in out-of-court negotia- tions. "I don't think, if push came to shove, you would have a very good chance of winning on a judicial deter- mination." Freelance journalist and business writer Kevin Marron can be reached at kevin@ kevinmarron.com. Built just for you Together we have all the tools The TitlePLUS® your clients from title risks.1 you, through our legal services coverage2 Program works with you to help protect With the right tools we assist , by reducing the inconvenience of dealing with a loss as the result of an error or omission in your real estate transactions. To ensure your clients get the most comprehensive coverage in one policy, take a look at the TitlePLUS Program, your Bar-related® real estate partner! PROTECTION AS GOOD AS IT GETS 1-800-410-1013 1 titleplus.ca Please refer to the policy for full details, including actual terms and conditions. The TitlePLUS policy is underwritten by Lawyers' Professional Indemnity Company (LAWPRO®)/ Assurance LAWPRO®. Assurance LAWPRO is a registered name used in Québec by Lawyers' Professional Indemnity Company. Contact LAWPRO for brokers in Manitoba, Alberta and Québec. 2 Excluding OwnerEXPRESS® policies and Québec policies. ® TitlePLUS, the TitlePLUS logo, OwnerEXPRESS, LAWPRO and Assurance LAWPRO are registered trademarks of Lawyers' Professional Indemnity Company. ® BAR-RELATED Mark is a registered Mark of North American Bar Related Title Insurers used by LAWPRO under License. www. C ANADIAN Law ye rmag.com SEPTEMBER 2010 19