Change Of Control Of Commercial Tenants: Drafting, Interpretation And Practical Considerations

Change of control provisions are a common feature of commercial leases, yet, in practice, their meaning and operation remain a recurring source of uncertainty. A recent review of the available Canadian jurisprudence and commentary confirms what many practitioners may already suspect: while the substance of change of control provisions may not vary significantly from lease to lease, the interpretation and application of such provisions is fact dependent and complex. While some commentary exists, the legal landscape has not materially evolved in recent history. Given the importance of such provisions, particularly for corporate tenants that may be subject to reorganizations and restructurings, it is worth revisiting the conversation and considering future practice when it comes to drafting change of control provisions.