If the default is a failure to open for business, then a different cure period under the lease likely applies.Also, if this option is chosen, then the lease will have been affirmed and the landlord cannot later change its mind and terminate for that same breach. There are strict rules that must be followed if a distraint process is used (including that only sufficient goods to pay the rent arrears can be seized, there has to be an appraisal of the goods, it has to be the tenant’s goods, etc).If the tenant default is a failure to pay rent, then one option is that the landlord can distrain (seize) the tenant’s goods on the premises with a view to eventually having those goods sold to pay for the arrears of rent.Termination is, of course, one remedy but if the landlord wants the tenant to remain, it does not have a backup tenant to take over the premises, or it does not want the premises to go “dark” for any length of time, then other remedies should be examined. Just because there is a default, it does not mean that termination is the only remedy.

If no days are noted, a prudent landlord may wish to provide at least a few days notice to cure unless the goal of the landlord is an immediate termination of the lease in order to gain control of the premises. The lease will have to be reviewed, but it could be a 5 day cure period, 7 days, or more. If there is a default, the tenant usually has to be given notice to cure the default.Some basic and general overriding principles landlords ought to know when dealing with a commercial lease default include: What is a commercial landlord able to do in the face of a default by a tenant? Similarly, how can a landlord respond to a request for rent relief? Below we outline some general principles which a landlord ought to have in mind when faced with a defaulting tenant or a tenant who seeks rent relief. In addition, we have also recently become aware of tenants who have approached landlords, prior to a default, and have asked for rent relief due to the dramatic decrease in business over the last week or so. These circumstances are, of course, impacting landlords as well.

We have recently seen a number of tenant defaults (or potential defaults depending on the wording of the relevant lease) which include failing to pay rent and closing down operations for a period of time. The ongoing global pandemic is currently having an enormous impact on commercial retailers, restaurants, and other commercial tenancies in, among other places, British Columbia and Alberta.

Letter of default on lease