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ARTICLE · 12 SEPTEMBER 2016

Fundamental Breach Of Commercial Leases

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A typical commercial lease is not a balanced document in terms of rights and remedies for a breach of the lease. There will be long list of tenant defaults that will give the landlord a full range of remedies.

CanadaReal Estate and Construction
William Rowlands
William Rowlands
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Article by William Rowlands and Anthony Pallotta, Summer Law Student

Introduction

A typical commercial lease is not a balanced document in terms of rights and remedies for a breach of the lease. There will be long list of tenant defaults that will give the landlord a full range of remedies. This will include a right to enter the premises and terminate the lease for any default not cured within the required notice and cure period. On the other hand, there will typically be no listing of landlord defaults or tenant rights and remedies.

A tenant does have rights at common law. A tenant can, of course, bring an action for any damages suffered as a result of a breach by its landlord. Another right is to treat the lease as at an end where that is justified by a fundamental breach of the lease by the landlord. The recent decision of Kenny Alwyn Whent Inc. v J. Mao Dentistry Professional Corp. is an example of a situation where the tenant attempted to use this remedy.

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