Proposed New Commercial Tenancy Act

A committee formed by the British Columbia Law Institute is asking the public for feedback on its consultation paper on proposals for a new Commercial Tenancy Act (the “Act”).  The committee intends to publish a final report in June 2009.

The committee believes that the Act is out of date and has published 58 tentative recommendations, including:

• harmonizing the formal requirements for creating a lease with the similar rules in the Land Title Act;
• doing away with the common law rule that a tenant has no interest in land until taking physical possession of leased premises, but only an interest to take possession at the time stipulated in the lease;
• spelling out in the Act the terms of a lease implied by law, which would include quiet enjoyment, non-derogation from grant, payment of rent, non-payment of rent or breach of other covenants, and repairs;
• allowing parties to a lease to override the implied terms by express agreement;
• implying a duty on landlords to act reasonably in considering a request from a tenant to assign its interest in the lease or to sublet the leased premises;
• retaining and consolidating provisions of the Act and the Property Law Act that relate to merger and surrender;
• either abolishing or modernizing a landlord’s right to seize and sell the tenant’s goods on leased premises for outstanding arrears of rent;
• clarifying the application of the contractual doctrine of fundamental breach to leases;
• requiring landlords to mitigate their losses incurred as a result of abandonment of leased premises;
• consolidating and expanding the scope of the existing summary dispute resolution procedures in the Act;
• retaining the self-help character of re-entry but requiring landlords to engage a qualified bailiff to effect re-entry;
• integrating disputes involving overholding tenants into a reformed summary dispute resolution procedure; and
• retaining a section dealing with issues arising from a tenant’s bankruptcy in a new Commercial Tenancy Act.

The full consultation paper, a brief backgrounder and a response form are available online at:
http://www.bcli.org/bclrg/projects/commercial-tenancy-act-reform-project.
The deadline for submissions is March 31, 2009.

For additional information on this topic contact Pushor Mitchell Associate Andrew Brunton at brunton@pushormitchell.com or (250) 869-1135