Hot Topics & Key Legal Issues in Office, Industrial and Retail Leasing
Location: North Building
Credits: BOMI: 3 Accreditation(s): BOMA
Stream(s): Legal, Regulatory & Risk Management
SPECIAL 1/2 DAY PROGRAM – 8:30 A.M. – 12 NOON
LIMITED SEATS AVAILABLE – RESERVE YOUR SPOT NOW
8:30 a.m. – 9:10 a.m.
Helpful Commercial Leasing, Mediation and Arbitration Tips
- Why is an offer to lease more important to a tenant than it is to a landlord?
- If a lease prescribes that any notice to be given by the tenant to the landlord must be given by registered mail, can the tenant send its notice by regular mail?
- Should a landlord accept a tenant’s insurance certificate of the tenant’s insurance coverage?
- Is a renewal of lease and an extension of lease the same thing?
- Does it make a difference if a notice to renew or a notice of extension is late by one day?
- Is a guarantee and an indemnity of a lease the same thing?
- Can a landlord withhold its consent to a requested assignment reasonably, unreasonably or not at all?
- What’s the difference between a mandatory mediation and arbitration?
- A lease should provide that if there is a dispute between the parties, they should first mediate, and that if mediation is not successful, then the parties should arbitrate under the Arbitration Act of Ontario, and if that is not successful, then they may go to litigation. Why this process?
- Three arbitrators – No Way! – Why not?
- What’s the difference between “rented” and “rentable”?
Harvey M. Haber, Q.C., Mediator and Arbitrator, COE ADR Management
9:10 a.m. – 9:50 a.m.
Potential Legal Implications and Interesting Commercial Leasing Case Law
- How are the Indemnifier’s obligations affected by assignments or amendments of the original Lease?
- “Those for whom in law the landlord is responsible” – how far will an exculpatory clause extend?
- Paving of a parking lot – capital cost or not?
- Ontario Realty Taxes – Separate Assessments. Can MPAC working papers be relied upon?
- Use clauses – can your restaurant tenant place an ATM in its premises?
- The expansion of the common law duty of good faith – the duty of honest performance of contracts.
- Whose lease form will be used on a renewal?
- Deposits – a security interest or pre-paid rent? Can the Landlord keep the deposit when the Tenant becomes bankrupt?
- HBC vs Omers – is your tenant a limited partnership?
- Termination on a request for consent to a transfer – what does your lease say?
Sheldon Disenhouse, Partner, Dentons Canada
9:50 a.m. – 10:10 a.m.
10:10 a.m. – 10:50 a.m.
Distress: A Bailiff’s Perspective of What Actually Happens in an Arrear or Breach of Other Covenants
Distress or Termination: The Actual Process from Start to Finish:
- Why the Landlord should use an experienced Bailiff
- Effecting the seizure
- Selling the assets
- Distress vs. Termination
- Kelly Douglas Termination
- Abandoned goods after Termination
- What does a Landlord want to accomplish?
- Economic factors to consider
- Priority Creditors: Distribution of the Proceeds
- Trust taxes, employee deductions etc.
Earl Boeko, President, Sterling Bailiffs Inc.
10:50 a.m. – 11:30 a.m.
Landlord’s Rights and Remedies: Tenant Defaults – Monetary and Non-monetary
Landlord remedies for tenant defaults:
- It starts with the Offer and Lease: Tenant’s covenant, indemnifier and landlord’s security for tenant obligations
• Tenant defaults: monetary and non-monetary
• Landlord remedies: Termination (how to effect) and other remedies including enforcement of security, legal action, distress, rent assistance and early termination agreements
• Relevant considerations: Lease, legislation and case law
• Landlord position in tenant insolvency, bankruptcy, restructuring
• Dispute resolution
Tenant remedies for landlord defaults:
- Withhold rent (partial or complete)
- Self-help and set-off cost against rent
- Fundamental breach – termination
Stephen Posen, Partner, Minden Gross LLP
11:30 a.m. – 12 noon
Harvey Haber, Mediator and Arbitrator at COE ADR Management
Harvey M. Haber is one of the foremost experts specializing in all legal aspects of commercial leasing, backed by more than 40 years of experience. He is named as one of Canada’s most frequently recommended property leasing lawyers by the Canadian Legal LEXPERT Directory and listed in the Lexpert/American Lawyer Guide to the Leading 500 Lawyers in Canada. He is well-renowned for his mediation, arbitration and his experience in alternative dispute resolution (ADR). Harvey is both a chartered mediator and a chartered arbitrator in every field including commercial leasing. He has written and edited numerous commercial leasing books and articles, and has also lectured across Canada and the US on a wide range of related commercial leasing topics. He has also received several prestigious awards in recognition of his contributions to the legal profession and the field of commercial leasing and was appointed as a Queen’s Counsel by the Province of Ontario. Harvey has developed a reputation as a well-spoken and knowledgeable lecturer, panelist, chairperson, course leader and keynote speaker, based on his ability to discuss a wide range of topics related to legal commercial leasing issues. He has spoken at numerous conferences, presentations, roundtable discussions and other events across Canada and the US, including The Law Society of Upper Canada, the Canadian and Ontario Bar Associations, The Retail Council of Canada, the International Council of Shopping Centers and The American Bar Association. Perhaps most impressively, Harvey learned his lecturing skills from the late Milton R. Friedman, one of the foremost educators and authors in the United States on commercial leasing. He helped Harvey to develop a style that has made him in demand as a speaker and expert in commercial leasing legal issues. As of November 1, 2015, Harvey has joined COE ADR Management to act solely as a mediator or arbitrator.
Sheldon Disenhouse, Partner at Dentons Canada
Sheldon Disenhouse specializes in commercial leasing and franchising. He acts on behalf of developers, landlords, tenants, franchisors and franchisees, and has extensive experience in drafting and negotiating leases, franchise agreements and related ancillary documentation. Sheldon’s experience extends to general corporate matters including the drafting and negotiation of shareholders agreements, agreements of purchase and sale, and other corporate documentation. He has contributed to many publications and has spoken at numerous conferences on a variety of commercial leasing and franchising issues. Sheldon is listed in The Canadian Legal Directory LEXPERT™ as a leading practitioner in the area of commercial leasing, the LEXPERT American Lawyer Guide to the Leading 500 Lawyers in Canada, and in Woodward/White’s The Best Lawyers in Canada.
Earl Boeko, President at Sterling Bailiffs
Earl Boeko was raised and educated in Montreal, Quebec. He received a Bachelor of Commerce Degree from Concordia University in 1977, and moved to Toronto in 1978. He worked for Credit Counseling Services, negotiating repayment schedules and budgeting insolvent individuals to creditors. In 1980, He went on his own, offering the same type of services to Commercial Debtors. In doing so, he also acted as receivers on behalf of large institutional secured creditors. He was a guest on Judy Webb’s “Our Toronto Show”, a popular radio talk show and lectured on “The alternatives to Bankruptcy….Negotiating with creditors..” In the later half of 1980, on behalf of a large institution he set up a countrywide service offering sub searches, home appraisals, execution searches, corporate searches, etc. In the early 1990’s, Earl started working for a Bailiff company in Toronto area, primarily selling Bailiff Services. His knowledge in Insolvency matters proved very effective, and in 1995 opened up Sterling Bailiffs Inc., which is currently one of the largest and most recognized Bailiff firms in Ontario, specializing to the Institutional Lenders, Landlords, and Governments. In 1998, Sterling also bought Universal Bailiff Service Ltd., a company that has been in existence for 40 years. Earl has lectured repeatedly on “Remedies to Commercial Creditors and Landlords”, including to the Ontario Bar Association (formerly known as the Canadian Bar Association), Toronto Real Estate Board Continuing Education, and BOMA Real Estate Forum, etc. He has also co-authored many books on such matters, and is considered the authority on Landlord and Tenant, and Debtor insolvencies and remedies. He was also Director of the Ontario Bailiffs Association for the years 1997 thru 1999. In addition, Earl is also an auctioneer and graduate of World Wide College of Auctioneering in Mason City, Iowa and a member in good standing of the National Auctioneering Association (NAA).
Stephen Posen, Partner at Minden Gross LLP
Senior Partner/Chair of Commercial Leasing Group. Extensive experience in all aspects of commercial leasing including commercial leasing alternative dispute resolution. Acts for leading national and international retailers, developers, landlords and tenants. Actively engaged in ICSC and frequent lecturer, panelist and panel chairperson of Continuing Legal Education programs for Law Society of Upper Canada, Canadian Bar Association, ICSC and private continuing legal education organizations. Co-editor/contributor to Shopping Center Leases, Volumes 1 and 2 and Shopping Centre Leases, Second Edition, Canada Law Book, 2008 and various other leasing publications. Has been recognized by LEXPERT as one of the leading lawyers in Canada in the field of Property Leasing, and the Leading 500 lawyers in Canada. Has participated in a number of commercial lease related arbitrations and mediations and has served frequently as an expert witness in commercial leasing matters.