Difference between revisions of "Commercial Tenancies (19:XIV)"

A commercial landlord may distrain (seize personal property for non-payment of rent), while a residential landlord may not (regardless of any rental arrears). The personal property being distrained must be located in the rented premises and the landlord must give notice before seizing  the property. The tenant will suffer a penalty if he or she removes the goods to prevent distrainment. Distrainment keeps the tenancy alive.  Usually the month after distrainment the tenant will be evicted if there remain rent arrears or if new rent arrears accrue.  

'''NOTE:''' For specific details, see the ''Occupier’s Liability Act'', RSBC 1996, c 337 [OLA]. The OLA, s 6 speaks to sub-tenancies.  

The landlord has no statutory or common law duty to maintain the demised premises unless provided for in the lease agreement. Contractual  liability of the landlord is to the tenant alone, not to his or her family, guests, or customers. Moreover, as the landlord is not an occupier, he or she is not liable in tort.  

However, where the landlord is under a duty to maintain the premises, s 6 of the OLA puts the landlord in the same position as the occupier of the premises. Where the landlord fails to maintain the premises and an injury results, the landlord will be held liable. The landlord is considered an occupier with regards to common areas. His or her duties are set out in s 3 of the OLA.  

The tenant is considered an occupier, and inherits all duties that go along with that designation. A tenant should take reasonable care to  inspect, notify the landlord, and give warning to an invitee of any unusual danger in the common areas. Where an occupier can foresee that a  trespasser may enter the property, there is a duty to treat the trespasser with common humanity.

If the landlord terminates because of the tenant’s default, the landlord’s damages are generally based on the landlord’s anticipated loss for the balance of the lease term. However, landlords are expected to mitigate their losses and so they are not always at liberty to claim damages for the remainder of the lease term. See ''Highway Properties Ltd. v Kelly, Douglas & Co. Ltd.'' (above). (There appears to be no duty to mitigate where the landlord does not accept the tenant’s repudiation of the lease, and simply sues for rent as it comes due under the principles of property law. Should this situation arise, clients are strongly advised to consult an experienced lawyer.)  

There may also be damages available for work done to the property, the cost of re-renting, and the like. In a falling rental market, a tenant  may be held responsible for the landlord’s losses in acquiring a new tenant at a lower rent. The landlord must look for another reasonable tenant.