Last month, our second bulletin dealt with the types of remedies that are available to a lender in Ontario when there has been a default under the mortgage that has not been satisfactorily resolved following notice by the lender. Some of these remedies can be used in conjunction with others, but this bulletin of the mortgage enforcement series takes a closer look at the advantages and disadvantages of the two mutually exclusive remedies - foreclosure and power of sale. Foreclosure and power of sale are two very different remedies that have some important legal and practical differences between them. (Please note that these bulletins are drafted from an Ontario law perspective. We would be pleased to discuss any mortgage enforcement questions you might have for the other Canadian provinces.)
B. PROS AND CONS OF FORECLOSURE AND POWER OF SALE
Power of Sale
BLG's COMMERCIAL REAL ESTATE GROUP
Our Commercial Real Estate Group consists of more than 50 experts across the country in all facets of commercial real estate law. We provide excellent creative legal advice to a broad spectrum of clients including developers, builders, pension funds, private financiers, lending institutions, private, public and crown corporations, national and international business communities, including aerospace and airlines, banking and finance, securities, manufacturing, construction, insurance, government agencies, natural resources, high technology, retail, transportation and real estate.
Our services include:
Acquisition and Development
Negotiation and preparation of all documentation relating to the acquisition, development, construction, financing and marketing of commercial, industrial and residential properties, including:
- Retail plazas
- Office buildings
- Business parks
- Apartment buildings
- Condominium projects
- Mixed-use developments
- Residential subdivisions
- Shopping centres
Negotiation of arrangements between private enterprise and governmental bodies relating to land and infrastructure development.
Formulation and preparation of proposal calls for public/crown corporations and all ancillary agreements.
Construction and Infrastructure
Negotiation and preparation of construction contracts.
Negotiation, structuring and financing of infrastructure projects.
Financing and Restructurings
Mortgage enforcement and preparation of all notices and court documents on behalf of lenders. Negotiation and preparation of all financing documentation on behalf of private and institutional lenders and borrowers, for project and term financing.
Negotiation of arrangements between investors and developers pertaining to the restructuring of financial affairs, including attending to all due diligence matters.
Negotiation and preparation of all documentation relating to the acquisition, development, construction and financing of hotels, including advising with respect to all related issues including, hotel management agreements, licensing agreements, employment issues, co-owner arrangements, liquor licensing agreements and franchise agreements.
Performance of due diligence reviews and advising on compliance with laws and regulations, advising on obtaining required authorizations and licences and on co-ordinating environmental audits and clean-ups. Negotiation of environmental representations and warranties, advising on the management and disposal of contaminants and their transport, storage and export, and providing representation before administrative tribunals, the civil courts and in governmental inquiries related to these matters.
Advise and assist on all aspects of zoning and planning work, including securing approval of amendments to zoning, advising on expropriation and permitted land uses and the appeal of realty tax assessments. In Québec, this includes representation before the Tribunal Administratif du Québec to contest municipal valuation assessments of major hotel, office, commercial and industrial properties.
Long Term Ground Lease
Negotiation and preparation of long-term ground leasing arrangements for both public and private sectors.
Negotiation and preparation of all leasing documentation for retail centres, business parks, office buildings and warehouses.
Structuring, assistance, negotiation and preparation of all condominium documentation, including project financing documentation, declaration, by-laws and rules, disclosure statement, development agreements and sales agreements.
Negotiation and preparation of all documentation required to form real estate syndicates and partnerships, as well as co-tenancy and joint venture arrangements for developers.
Negotiation and preparation of all required documentation and advising with respect to the entering into and the structuring of limited partnerships.
The Borden Ladner Gervais LLP Commercial Real Estate Law Alert is necessarily of a general nature and cannot be regarded as legal advice. The firm would be pleased to provide additional details and to discuss the possible effects of these matters in specific situations. Lawyers " Patent & Trademark
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.