Landlords that exercise the remedy of distress rarely recover
sufficient funds to satisfy the arrears of rent owing by the
tenant. A recent decision of the BC Supreme Court held that,
in such a case, a landlord cannot immediately terminate the lease
without first giving the tenant any required written notice of
default and allowing the applicable cure period to expire.
In Delane Industry Co. Ltd. v. PCI Properties Corp., 2013 BCSC
1397, the tenant fell into arrears and, after giving a written
demand letter specifying the amount owing and providing a five day
cure period as required by the lease, the landlord elected to
exercise its right of distress and seize and sell the tenant's
goods. The distress proceedings were completed but the amount
recovered was insufficient to cover the arrears. Later that
same day, the landlord gave written notice terminating the lease
with immediate effect.
The Court held that the termination was invalid. It began with
the well-settled proposition that a landlord cannot levy distress
against a tenant's property and terminate the lease at the same
time (as distress and termination are mutually exclusive
remedies). While the Court accepted that the landlord was
entitled to terminate the lease for any unpaid arrears following
the distress, it did not agree that the landlord could do so on the
basis of the demand letter, which had been acted upon with an
alternate remedy (the distress). In the Court's view, the
termination notice did not comply with the lease because it did not
provide five days' notice and an opportunity to cure, and did
not state the precise amount then owing (taking into account the
amount recovered by the distress). In order for the landlord
to terminate the lease validly, it would have had to first comply
with the terms of the lease by issuing a fresh demand letter
(specifying the amount owing) and allowing the five day cure period
The Ontario Court of Appeal confirmed that courts will generally support and uphold decisions of condominium directors because they are better positioned than judges to make decisions pertaining to their buildings.
According to the city bylaws in Calgary, the grading of lots for new buildings must be done properly so that the water never flows toward the new building or any other nearby properties, but away from those buildings.
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