Should a Lawyer to review your commercial lease?

I run a small business and I am currently in the process of looking for commercial space. Do I need a Lawyer to review the lease?

A commercial lease is a complex legal document. In addition to the usual but important commercial provisions such as the term of the lease and monthly rentals, there are numerous other commercial and legal provisions and terms that may significantly increase costs or may otherwise adversely affect your business.

Most commercial leases are not in a standard form and vary substantially from each other. This significantly complicates review by anyone other than the most experienced business person or professional advisor because even seemingly minor variations may have a significant impact on costs or legal rights. A simple example is in respect of the leasehold improvements that a landlord builds for you at the commencement of the lease. You might expect, correctly, that those improvements belong to the landlord at the end of the lease. You might not expect that the lease may provide the Landlord with the option requiring you to pay the cost of tearing out those improvements at the end of the term - yet some leases provide exactly that. A Landlord has a legitimate interest in knowing who their tenant is, and thus many leases provide for restrictions on assignment. At the same time, you may wish to sell your business sometime in the future, and want to know that you can do so without being unfairly restricted by your landlord. In our experience, most landlords are willing to negotiate one-sided assignment restrictions to provisions that more fairly balance their concerns with your business objectives.

The commercial lease is often the first or second largest expense line after salaries and wages and accordingly requires careful consideration. A Lawyer with experience in commercial leasing matters can review your lease and provide you with comments and advice enabling you to obtain a commercial leasing arrangement that meets your business’ needs.

Frequently Asked Questions

What is the Ontario land transfer tax?

I want to transfer my house to my son. Do we have to pay Land Transfer Tax on such a transfer?

‍As long as there is no consideration passing between you and your son, and the transfer is a gift to your son, there is no Land Transfer Tax payable.

‍What is Land Transfer Tax?

Land Transfer Tax is a tax levied by the Ontario government on every transfer of property, subject to some exemptions. The Land Transfer Tax is paid by a person acquiring the property at the time of a transfer. The amount of the Land Transfer Tax is based on consideration passing between a person disposing of property and a person acquiring it. Therefore virtually all purchases of real estate are subject to Land Transfer Tax.

Exemptions to Land Transfer Tax

The Land Transfer Tax is not payable when real estate property being transferred is a gift and there is no consideration passing between the parties. Assumption of an existing mortgage by person acquiring the property or giving a personal loan by person disposing of property to the person acquiring it is a form of consideration and therefore such a transfer would be subject to the Land Transfer Tax.

Transfer of property between married spouses pursuant to a separation agreement is also exempt from the Land Transfer Tax, regardless of the type and amount of consideration passing between the parties. There are some other exemptions under the Land Transfer Tax Act such as transfers involving trusts, transfers to a charity or transfers to a government organization.

First Time Home Buyer’s Rebate

First time home buyers may qualify for a Land Transfer Tax rebate of $2,000 if they have never owned a real estate property anywhere in the world. Further, a spouse of a first time home buyer cannot own any real estate at the time of purchase and must have disposed of previously owned property prior to becoming a spouse of a first time home buyer.

Are there any tax incentives for first time home buyers?

As a first time home buyer you may be eligible to receive a partial refund of the Ontario Land Transfer Tax which is charged on real estate purchases. The First Time Home Buyers’ Tax Credit and the Home Buyers’ Plan are federal programs that provide assistance.

‍Land Transfer Tax (LTT)

‍The Land Transfer Tax is paid to Ontario government whenever there is a registered change of ownership of real property. While there are certain exceptions, the land transfer tax is generally payable whenever someone purchases a residential home. The amount of the LTT depends on the purchase price and the current tax rate rises progressively from 0.5% on the first $55,000 of the purchase price to 2% of the amount of purchase price which exceeds $400,000.First time home buyers get a LTT refund up to a maximum of $2,000. To qualify for this refund, you must not have owned a home anywhere in the world in the past and you must use your new home as your primary residence within nine months of the purchase. If you are buying a home together with someone that is not a first time home buyer, you can still receive half of the refund.

‍First Time Home Buyers’ Tax Credit (HBTC)‍

The First Time Home Buyers’ Tax Credit is available for the taxation year in which a first home is purchased. The value of this tax credit is $5,000. It can lower a person’s income tax by up to $750.

‍Home Buyer’s Plan (HBP)

‍Home buyers can withdraw up to $25,000 from an RRSP if the funds are used towards the purchase of their home. Although there are no immediate tax consequences at the time of withdrawal, the full amount must be repaid to the RRSP within 15 years. To qualify, the Purchaser must not have owned a home in the preceding four years.

What is a condominium status certificate and why would you need one?

‍Status Certificate

‍Section 76 of the Ontario Condominium Act (the “Act”) provides for what is called a “Status Certificate”. Every condo purchase should be contingent upon review of the Status Certificate and a condominium corporation must provide a status certificate for a condominium unit upon request. The Status Certificate is used to learn all about the condominium corporation and provide the buyer with much of the documentation required for review. The Act sets out what must be contained in all Status Certificates, some of which includes:

Disclosure of all outstanding judgments against the corporation and the status of any legal proceedings to which the condominium corporation is a party;
A statement of any upcoming major repairs;
A statement of the common expenses for the unit and any default on the payment of those expenses;
A copy of the current budget of the corporation; and
A statement about the most recent reserve fund study and the amount in the reserve fund. (The reserve fund is used for performing major repairs of the common elements of the condo corporation.)

Rules

‍Attached to the Status Certificate are the rules and regulations of the condominium used for governing common elements such as hallways, lobbies and balconies. A real estate Lawyer can review these rules and explain them so that you understand what your rights and obligations are as condo owners.

‍Fee

‍Remember that according to the Act, the condo corporation may charge a prescribed fee for providing you with the Status Certificate