This post was originally published May 8, 2020 and was last updated on September 24, 2020.
On April 24, 2020, the Government of Canada announced that, in partnership with the provinces and territories, it will be providing relief to landlords who agree to reduce eligible commercial tenants' rent obligations by at least 75% during the months of April, May and June 2020. Under the program, known as CECRA, the federal and provincial/territorial governments are partnering to pay 50% of the gross rent in the form of a forgivable loan to landlords. The program is administered by the Canada Mortgage and Housing Corporation (CMHC), with the assistance of MCAP and First Canadian Title, through an application portal that opened at 8:00 a.m. (Eastern Time) on Monday, May 25, 2020. As discussed below, the CECRA program has subsequently been extended to the end of September 2020.
Originally published on May 8, 2020, this post has been updated to reflect additional information released by CMHC on May 14, 19 and 20, 2020, most significantly with respect to the application process, which has now been clarified with the release of sample agreements and forms of attestation (as described below), as well as an update on timing. An additional update on June 5, 2020 adds information about alternative funding through the Regional Relief and Recovery Fund, while further updates, on June 11, 19 and 30, 2020, deal with commercial eviction moratoriums and related legislation in seven of Canada's provinces. The most recent updates, on September 15, 17 and 24, 2020, reflect the extension of CECRA rent assistance through the end of September 2020 and add further information about Alberta's restrictions on commercial tenant evictions.
The Canada Emergency Commercial Rent Assistance (CECRA) program is a voluntary program administered by CMHC in partnership with the provinces and territories. CECRA is intended to help encourage commercial property owners and their tenants to work together to enter into a rent reduction agreement, in order to help minimize revenue loss to each party during the COVID-19 pandemic.
The fundamentals of the CECRA program were set out by CMHC in a document released on April 29, 2020 and are outlined below:
- A commercial property owner that is eligible to participate in the CECRA program will be guaranteed to receive no less than 50% of its gross rent from eligible tenants for April, May and June 2020;
- In order to obtain this benefit, the landlord and tenant must first enter into an agreement to reduce the tenant's gross rent obligation by at least 75% during the applicable period;
- To make up for the abatement (in part), the federal and provincial governments will provide a forgivable loan to the landlord covering 50% of the gross rent, leaving the landlord and tenant to cover the remaining 50% (however where a landlord agrees to grant a 100% rent reduction to the tenant during the applicable period, the landlord will cover the remaining 50% of gross rent with no contribution from the tenant);
- The property owner must agree to reduce the tenant's gross rent, rather than defer it, and may not take steps to recover the abatement at a later date;
- The property owner must also agree to an eviction moratorium during the rent reduction period; and
- The loan will be forgiven if the terms and conditions of the program are complied with (the date of forgiveness has now been set at December 31, 2020).
Each provincial/territorial government is announcing its own participation separately, but it appears that all jurisdictions are generally following the same set of rules, as set out by CMHC.
Since the initial announcement, additional details have been released, which we have incorporated into the discussion below. In a key development, the coverage period has been expanded gradually from the initial three months to six months, through to the end of September 2020. We will continue to update the information in this post as further announcements are made.
Eligibility for CECRA
Both the commercial property owner and the tenant must meet certain eligibility tests.
Under the CMHC requirements, the property owner must own or be the landlord of a property with impacted small business tenants (including subtenants) and must in most cases have declared rental income on its personal or corporate tax returns for 2018 and/or 2019. An exception to the tax return requirement exists for new builds and recent acquisitions that were leased to an eligible tenant on or before April 1, 2020. In addition, it must have entered into a rent reduction agreement for the months of April, May and June 2020 (and for July, August and September 2020 if an extension is sought) as described above. Finally, the rent reduction agreement must include (i) a moratorium on eviction during that period and (ii) a declaration of rental revenue as per the tenant's attestation (see below).
CMHC has addressed several key issues relating to landlord eligibility, including the following:
- Support is equally available for mortgaged and unmortgaged properties (and properties with other forms of debt);
- Mixed-use buildings are eligible with respect to their small-business tenants; and
- Properties owned by federal, provincial or municipal governments are generally not eligible, save for the following exceptions: (i) if the commercial property owner is a First Nation or an Indigenous organization or government which is the lessee of the property pursuant to a ground lease or similar long-term lease from such government to administer the commercial property; (ii) if the commercial property owner is the lessee of the property pursuant to a ground lease or similar long-term lease from such government to operate the property (such as a lease to an airport); (iii) if the commercial property owner is a crown corporation with limited appropriations designated as eligible for the CECRA program by CMHC; and (iv) if the commercial property owner is a post-secondary institution, hospital, or pension fund.
CMHC states that the tenant or subtenant must:
- Be a business, non-profit or charitable organization;
- Pay no more than $50,000 monthly gross rent per location;
- Generate no more than $20 million in gross annual revenues, as consolidated "at the ultimate parent level"; and
- Have experienced a 70% decline in revenue, as measured with respect to April, May and June 2020 vs. either (i) the same period in 2019 (if the applicable small business tenant was operating during such period) or (ii) the average of January and February 2020 (if the applicable small business tenant was not operating during April – June 2019). Commercial tenants that are not at arm's length with their landlords are eligible for CECRA, provided that a valid and enforceable lease was in place on or before April 1, 2020 on no greater than market terms (and that the other eligibility requirements have been met).
Small businesses that opened on or after March 1, 2020 are not eligible for the CECRA program. In addition, certain types of property owners and commercial tenants are ineligible. These include:
- Entities owned by political officeholders;
- Entities promoting violence, inciting hatred or which discriminate on the basis of race, national origin, colour, religion or a number of other enumerated grounds of discrimination;
- Entities using the premises for criminal purposes or that have been convicted of financial crimes or regulatory breaches or which are under criminal prosecution for such offences (including affiliates); and
- Entities subject to any actual or pending insolvency proceedings as well as those that are making applications for relief under the Bankruptcy and Insolvency Act or the Companies' Creditors Arrangement Act.
The application process opened on May 25, 2020. With the announced extension of CECRA for the month of September, the application deadline for new applicants has been extended to September 30, 2020, while existing participants now have until October 30, 2020 to apply for the September extension. Commercial property owners are able to apply with respect to all eligible tenants at the same time. Interested parties can register to receive email alerts and updates relating to the application process and the program generally.
Documents and agreements
CMHC has provided sample versions of the application documents available on its website, although it cautions that the final versions on the CECRA portal may differ. These documents include both a tenant's attestation and a property owner's attestation, in which the parties attest to their eligibility for the program, notably with respect to the 70% revenue decline, but also with respect to certain character issues relating to financial crimes or regulatory offences and issues of personal integrity that could be of concern to CMHC. To this end, both the tenant's and property owner's attestations incorporate an "Integrity Declaration" that is designed to ensure that CMHC does not advance loans to persons involved in criminal activity or who are otherwise of poor moral character. Note that, if an owner or tenant is not an individual, then depending on the type of entity that it is, it must make the Integrity Declaration with respect to its directors, officers, shareholders, beneficial owners and other similar individuals.
Parties must have a rent reduction agreement in place, including a moratorium on eviction and proof of tenants' financial hardship, in order to participate in CECRA. CMHC has provided a sample form of Rent Reduction Agreement on its website.
Finally, the property owner must sign a Forgivable Loan Agreement with CMHC in the form that is available on CMHC's website.
Extensions to CECRA
Three one-month extensions to CECRA have been announced. On June 30, 2020, the Government of Canada announced that the CECRA program will be extended through the end of July 2020 and on July 31, 2020 a further extension through the end of August 2020 was announced. The most recent extension, announced on September 8, 2020, continues the program through the end of September 2020. Participation in the extended program is voluntary. Eligibility, for existing participants and new applicants alike, is based on having experienced an average revenue decline of 70% or more during April, May and June 2020 (in other words, no additional assessment will be necessary with respect to July, August or September revenues).
- Existing applicants who wish to take advantage of the extensions must reapply for the months of July, August and September. The reapplication deadline for existing applicants has been extended to October 30, 2020.
- New applicants may choose to apply for (i) the three-month initial period (covering April, May and June) or (ii) an extended period of either four, five or six months (including July, August and/or September). In light of the extension of the program through the end of September, CMHC has extended the deadline for new applicants to September 30, 2020.
Alternatives to CECRA
If a business does not receive support through the CECRA program, there are other programs to which it could potentially look for relief, including inter alia the federal Regional Relief and Recovery Fund (RRRF). Operating through six regional development agencies, the RRRF provides pandemic relief funds in support of businesses and communities nationwide. Generally, access to RRRF loans is available only where a business has been unable to obtain other forms of federal relief. As noted on the RRRF website, the terms on which RRRF support is available vary from region to region.
Moratoriums on Commercial Tenant Evictions
In addition to participating in the CECRA program, several Canadian provinces have taken (or are in the process of taking) steps to curtail the eviction of commercial tenants during the pandemic. The terms of these moratoriums on evictions vary from jurisdiction to jurisdiction, as discussed below:
Effective May 20, 2020, Ministerial Order M179 prohibits commercial landlords from evicting, terminating a lease, re-entering, distraining or taking any steps to rent out a tenant's leased property on the tenant's behalf (without the tenant's consent). The Order applies where the landlord and tenant are eligible for the CECRA program and does not affect the right of the landlord to pursue legal remedies after the Order expires with respect to breaches that occurred while the Order was in effect. The Order will continue in force until the expiry of either the CECRA program or the B.C. state of emergency.
On July 23, 2020, Alberta's Commercial Tenancies Protection Act (the "Act"), came into force concurrently with the Commercial Tenancies Protection Regulation (the "Regulation"). The Act is intended to protect commercial tenants from eviction or other landlord remedies such as distraint, or from having their leases terminated for non-payment of rent or rent arrears for reasons related to the COVID-19 pandemic. The Act also prohibits the imposition or enforcement of rent increases, or fees or penalties for late payment or non-payment of rent against commercial tenants to which the Act applies. The Act covers the period from March 17, 2020 to August 31, 2020, or such later date as may be prescribed by the Regulation ("Emergency End Date"). As of the date of this latest update, the Emergency End Date has not been extended.
The Act applies to commercial tenancies that meet the conditions and requirements prescribed by the Regulation. That is, the Act applies if:
- the landlord and tenant are not eligible for CECRA solely because the landlord has not entered into a rent reduction agreement with the tenant that includes an eviction moratorium;
- the tenancy otherwise meets the CECRA eligibility requirements but the tenant's loss of gross revenue is at least 25% for the months of April – June 2020 (as compared to the minimum 70% loss of revenue threshold under CECRA); or
- the tenant was ordered to close its premises to the public by order or enactment of the provincial government.
The Act does not apply if the landlord and tenant have at any time participated in the CECRA program (with respect to the commercial premises) or with respect to evictions or lease terminations that occurred prior to June 16, 2020 (the date the Act received first reading). Further, the Act does not affect remedies a landlord may have under a tenancy agreement where a substantial breach has occurred that is unrelated to the pandemic.
If the Act applies and if the tenant is unable to meet its rent obligations as a result of the pandemic, the landlord and tenant shall enter into a payment for the payment of rent. "Payment plan" is not defined by the Act or the Regulations but may extend beyond the Emergency End Date and must account for rent increases, fees and penalties that the landlord was prohibited from charging under the Act and that have not been refunded to the tenant.
Non-compliance with the Act is considered a substantial breach of the tenancy agreement by the landlord.
On June 5, 2020, the Government of Saskatchewan issued Ministerial Order 102 under The Emergency Planning Act that includes a moratorium on commercial tenant evictions. It also prohibits commercial landlords from using the tenant's failure to pay rent as a ground for doing any of the following: exercising re-entry rights, distraining or taking any steps to rent out the tenant's leased property on its behalf (without the tenant's consent). The Order is in effect until either the end of the State of Emergency or the end of the period for which CECRA benefits are available.
The Government of Manitoba has enacted a temporary ban on commercial evictions to protect businesses and increase participation in the CECRA program. Effective June 24, 2020, Order in Council 183/2020 was introduced under The Emergency Measures Act (Manitoba) and remains in effect until September 30, 2020. The Order applies to any lease agreement between an eligible small commercial tenant under the CECRA program and a qualified landlord who is not eligible for assistance under the program in respect of that tenant due to either of the following reasons: (1) the landlord has not entered into a rent reduction agreement with the tenant that includes a moratorium on eviction; or (2) the landlord has failed to provide information or documentation requested by the Government of Canada concerning CECRA. Such landlords are prohibited from taking any of the following actions if their qualified tenant fails to pay monthly rent due under the lease agreement on or after April 1, 2020: (i) exercise any statutory, contractual or other right of re-entry to the premises (unless the tenant consents to such action); (ii) prevent or hinder the tenant from lawfully occupying the premises; (iii) distrain the tenant's property for the arrears of rent due (unless the tenant consents to such action); or (iv) apply for an order for eviction of the tenant from the premises. The Order does not apply to a lease whose term expired or a tenancy agreement that has otherwise terminated before June 24, 2020.
As of June 18, 2020, amendments to the Commercial Tenancies Act implementing an eviction moratorium in Ontario with respect to most commercial tenancies came into effect. The amendments prohibit certain actions by a commercial landlord that is eligible to receive assistance under the CECRA program with respect to a commercial tenant but has not elected to participate in the program. Specifically, where rent is in arrears, a landlord who is a party to a commercial tenancy that is subject to the amendments is prohibited from commencing an action or bringing an application for a writ of possession, as well as from exercising its right of re-entry or seizing any goods or chattels as a distress for arrears of rent. This moratorium was in effect until August 31, 2020 and applied retroactively to the period from May 1, 2020 to June 17, 2020. Given the extension of the CECRA program to the end of September, the Government of Ontario has indicated that it plans to extend the moratorium to expire on September 30 (and to apply retroactively to September 1), but such extension is subject to approval by the Legislature.
Quebec's proposed commercial eviction moratorium was introduced as part of a general pandemic response bill on June 4, 2020. However, for procedural reasons unrelated to the eviction moratorium provision, the bill did not pass prior to the National Assembly's summer recess. As a result, the eviction moratorium will not take effect as planned and it remains to be seen whether it will be introduced again at a later date. As proposed, the commercial eviction moratorium would have prevented landlords, in the event of non-payment of rent by a tenant, from terminating a commercial lease, carrying out a seizure of property on the leased premises, or giving tenants a prior notice of the exercise of a hypothecary right over property contained in the leased promises and registering the prior notice at the Register of Personal and Movable Real Rights.
Nova Scotia's moratorium on commercial evictions predates the CECRA program. Effective March 31, 2020, it prohibits retail and commercial landlords from exercising the remedies of notice to quit or distress under the Tenancy and Distress for Rent Act. This applies to rent due on or after March 22, 2020 from a retail or commercial tenant whose business has been "substantially and directly restricted", or required to close altogether, by an order issued under the Health Protection Act. The Nova Scotia moratorium will be in effect as long as the province's State of Emergency continues.
Other Provinces and Territories
New Brunswick lifted its moratorium on commercial tenant evictions as of June 1, 2020. Prince Edward Island, Newfoundland & Labrador, Yukon, Northwest Territories and Nunavut have not introduced moratoriums of this type.
Frequently Asked Questions
Many landlords and commercial tenants are expressing interest in taking advantage of CECRA. The following are among the questions that we are hearing from those in the industry:
Q1. Is the CECRA program mandatory?
A1. No. Both the landlord and the tenant must meet the eligibility requirements and agree to participate. This includes the parties entering into a freely negotiated rent reduction agreement.
Q2. We have already worked out a landlord-tenant arrangement. Can we still take advantage of CECRA?
A2. Yes, to the extent that your arrangement is compliant with the CECRA eligibility requirements. If it is not, you can still participate if you alter your arrangement to meet the eligibility requirements. For example, in addition to amending any other non-compliant aspects of the agreement, any rent paid in excess of the CECRA maximum must be refunded or credited to the tenant in accordance with the CECRA requirements. Note that the 25% tenant contribution is a maximum; an arrangement in which the tenant paid less would not be non-compliant on that basis.
Q3. Can we participate retroactively?
A3. Yes, as noted above, CMHC is accepting new CECRA applications until September 30, 2020, provided that the landlord and tenant were eligible during the relevant period. If eligible for the program on this basis, the property owner would be required to refund any rent paid in excess of the CECRA maximum to the tenant (or, alternatively, to credit the rent in accordance with the CECRA requirements).
Q4. How do we calculate eligibility with respect to the CECRA $20 million consolidated gross revenue test? For example, is there any guidance on what constitutes the "ultimate parent level" in the case of a business that is part of a multinational conglomerate?
A4. We understand that this is a significant issue for some commercial property owners and tenants in determining a tenant's eligibility for the program. To date, the only guidance released by CMHC on this point has been that if the small business tenant or its ultimate owner produces consolidated statements, then the tenant would use revenues reported for the group level of companies. Alternatively, if the small business tenant does not produce consolidated statements, then it is the specific revenue of the tenant that applies for the $20 million revenue test.
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.