Canada: What Is The Best Way To Hold Leases For Your Franchise Network?

Franchising Bulletin
Last Updated: May 30 2019
Article by Jean H. Gagnon

Many franchisors and their financial and legal advisors ask themselves if there is an ideal model for holding leases in a franchise network.

Several decisions rendered in the last few years have underscored the weaknesses and flaws of some of these methods, particularly of one method thought at one time to be the best, i.e., having the franchise leases executed and held by a corporation that is controlled by the franchisor and owns no other assets than those leases (a "shell corporation"). 

Before answering the question as to whether there is an ideal model for holding leases in a franchise network, here is an overview of the primary ways for a franchise network to hold the leases of its franchised locations:

Franchisor as Owner of Premises - Franchisee as Tenant

This model is used by several franchisors (typically larger franchisors) for at least some of their franchised locations.

Also a real estate investment opportunity for the franchisor, this model ensures that the franchisor retains a high level of control over each of the locations of its franchised network.

Franchisor as Tenant of the Premises - Franchisee as Subtenant

This model is also used by several franchisors.

While ensuring a good level of control over each location, under this model the franchisor becomes liable for all the obligations under each lease (a liability that must be reflected in the franchisor's annual financial statements).

Franchisee as Tenant with a Three-Way Agreement (Lessor – Franchisee – Franchisor) Under Which the Franchisor is Entitled to take back the Lease Under Certain Conditions.

Theoretically, this method might seem ideal since the franchisor assumes no liability to the lessor while benefiting from the option of taking back the franchisee's lease in the event the franchise agreement is terminated or of any default by the franchisee under the lease.

This method, however, can be difficult to sell to a lessor (who has no guarantee that the franchisor will assume the lease if the franchisee is in default) and requires injunctive relief if, once it has defaulted, the franchisee refuses to voluntarily comply.

Franchisee as Tenant Without a Three-Way Agreement

This model is used primarily (a) when the location is not that important for the franchisor, (b) for premises that the franchisor considers risky or not particularly attractive, and (c) when there are several alternative locations available nearby.

Franchisee as Owner of the Premises

Lastly, the franchisee (or any person related to the franchisee) may be the owner of the premises.

Clearly, this model provides the franchisor with very little control over the location.

This model, however, may be combined with the second or third model described above, for example, by having the owner-franchisee sign a long-term lease with the franchisor, who in turn then signs a sublease with the franchisee, the term of which may be the same as the term of the franchise agreement.

In this model, a franchisor may also obtain from the franchisee-owner an option to purchase (in certain circumstances, including termination of the franchise agreement) or a right of first refusal on the property.

There are many variations of each of these models and there are also others that are less commonly used (but appropriate in certain cases).

To return to our initial question, and as you might well imagine, there is no "ideal" model suitable for all franchisors.

Since several factors come into play and each franchisor should think carefully before choosing the model for holding its franchise network's leases. These factors include (a) the importance of the site for each establishment, (b) the appeal and commercial value of the site, (c) the franchisor's ability and willingness to take over a failed site, (d) the franchisor's financial resources, and (e) how important it is to the franchisor to control the locations of its franchised network as compared to the risk that might arise from being liable for the leases.

Keep in mind, however, that a franchisor is not required to use only one model for all the locations in the network.

By adapting its contracts accordingly, it is entirely possible that a franchisor might choose a different model for each premise. For example, a franchisor may own certain premises, be the primary tenant and sublessor for some, have a three-way agreement for others, and allow some franchisees to own their premises.

Regardless of the model(s) chosen, how well the agreements governing the premises (e.g., franchise agreement, lease, sublease, three-way agreement) are drafted is often the most important factor in preserving and protecting the franchisor's rights. Ensuring that the agreements are duly executed by all parties (including, for many, by the lessor of the premises) is equally important.

Unfortunately, often it is only when a problem arises that the franchisor is truly able to evaluate the quality of its contracts.

Fasken has all the expertise and resources required to help you create, structure, and draft contracts that are thorough and appropriate, and that protect your rights while avoiding potential pitfalls.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions