By Harvey Haber, Q.C. J. D.
A tenant should have his/her lawyer always subsearch the title to the property to determine:
(a) that the owner of the property is in fact the landlord under the lease (and if not, why not);
(b) if there are any restrictions on title which can affect the operation of tenant’s business (such as any restrictive covenants given by the landlord to other tenants, or easements given to third parties); and
(c) whether there are any mortgages or encumbrances registered on title (as a tenant will want the landlord to obtain a “non-disturbance agreement” from any mortgagee in the tenant’s favour).
A tenant should have his/her lawyer determine that the property is properly zoned to permit the tenant’s use of the premises, and to make absolutely sure that the landlord’s lands are properly zoned so as to permit a shopping centre or whatever development is contemplated.
If the landlord is a corporation, the tenant should make a corporate search of the landlord at the Ministry of Consumer and Commercial Relations in order to determine (i) if the name of the landlord is accurately spelled; (ii) that it exists; (iii) in what jurisdiction it was incorporated; and (iv) the names and addresses of the directors and officers.
Harvey Haber, Q.C., J.D., LSM, DSA, C. MED., C. ARB., B.A. – He is senior partner at Goldman Sloan Nash & Haber LLP in Toronto. He specializes in Retail, Office & Industrial Leasing, Mediation and Arbitration and can be reached at firstname.lastname@example.org or by phone 416-597-3392.