Canada Emergency Commercial Rent Assistance (CECRA) – Key Considerations for Landlords and Tenants

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Canada Emergency Commercial Rent Assistance (CECRA) – Key Considerations for Landlords and Tenants

We have been closely monitoring updates related to the roll-out of the Canada Emergency Commercial Rent Assistance Program (“CECRA”). In previous blog posts we covered initial announcements and application details. This post brings readers up to date on the final form of application materials, recent government announcements, and practical considerations.

The online CECRA application portal opened on Monday, May 25, 2020 and is accessible via the CMHC website. To provide landlords and tenants with greater clarity regarding CECRA participation, this update outlines:

  • important details contained in the final forms of the CECRA application materials (currently available only via the application portal);
  • British Columbia’s Ministerial Order M179 restricting evictions by CECRA-eligible landlords; and
  • a list of practical factors to consider when assessing participation in CECRA.

CMHC has announced that MCAP and First Canadian Title (FCT) will be administering the program on behalf of the Government of Canada, in tandem with participation from the provinces and territories.

Final Forms of Application Materials

In a previous post, we outlined CECRA eligibility for both landlords and tenants, and described the main details of the CECRA application materials.

Now that the application portal is open, the final forms of CECRA application materials are available online:

  • Tenant Attestation
  • Property Owner Attestation
  • Rent Reduction Agreement
  • Forgivable Loan Agreement
  • New: Program Terms and Conditions

These final forms are only available within the applicant portal, which is accessible only after registration. Anyone referring to the sample forms (which were publicly available on CMHC’s website prior to May 25) should be aware that there are minor changes to each of the documents. A detailed summary of the changes is beyond the scope of this blog post. Note, however, that the final form of Forgivable Loan Agreement clarifies that the landlord can move to evict the tenant if the tenant fails to pay the reduced CECRA rent.

B.C.’s Ministerial Order Prohibiting Certain Commercial Evictions

On Monday, June 1, 2020, B.C.’s Minister of Finance announced that Ministerial Order M179 (the “Order”) will prevent evictions by CECRA-eligible landlords who choose not to participate in the program. Landlords and tenants who are not eligible for CECRA are not impacted by the Order.

The Order applies in cases where a landlord and tenant (or sub-landlord and sub-tenant) are eligible for CECRA but do not participate as a result of the landlord’s decision not to enter into a rent reduction agreement that includes a moratorium on eviction. In such cases, the landlord is prohibited from:

  • exercising its right of re-entry;
  • providing the tenant notice of termination or re-entry;
  • distraining the tenant’s property for rent due; and
  • taking any steps to rent out the tenant’s property on the tenant’s behalf.

Landlords are not prohibited from exercising other remedies available to them as a result of the tenant’s failure to pay rent or other acts of default under the lease (including, for example, bringing a court action for the non-payment of rent).

The Order will remain in effect until the earlier of (a) the last extension of the B.C. state of emergency (currently June 9, 2020, subject to any extensions); and (b) the last date for which CECRA provides assistance (currently June 30, 2020, subject to any extensions).

There are certain exceptions to the Order, including where the lease has expired or will expire while the Order is in effect, and where the landlord is an Indigenous band or First Nation (as listed in s. 3 of the Order).

To date, B.C. is the only province to introduce an order incentivizing CECRA participation, although similar draft legislation has been recently announced in Quebec. We will be closely following these developments. 

Key Considerations for Landlords and Tenants

With the application portal open and the form of application materials now finalized, landlords and tenants should have a clearer picture of whether they might benefit from the CECRA program, although some questions remain unanswered and will hopefully be addressed in short order.

Based on a review of the materials and related factors, we have identified key considerations for landlords and tenants in assessing whether to participate in CECRA:

  • Timing: to qualify for CECRA, tenants must attest to having experienced a 70% decline in gross revenue (as defined in the underlying lease agreement) for the months of April, May and June. While it is not required for all tenants carrying on business at a given property to participate in that property owner’s application, any tenants who do elect to participate in the application must meet this 70% threshold.
  • Lender’s consent: property owners should review any financing agreements in order to determine whether lender consent is required to participate in the rent reduction agreement.
  • Administrative burden: the administrative burden of CECRA participation rests primarily with the property owner, who is responsible for submitting the application and coordinating applicable documents, including the tenant attestation and any lender consent that may be required.
  • Confidentiality: as part of their application, property owners and tenants are required to provide CMHC with certain information, which CMHC is authorized to use and disclose for a number of specific purposes, in accordance with all applicable privacy legislation.
  • Subleases: small business tenants who are leasing space pursuant to sub-tenancy arrangements are eligible for CECRA, so long as the lease structure meets program criteria. Property owners applying in respect of eligible sub-tenants should carefully review the form of Rent Reduction Agreement and Tenant Attestation in order to properly structure their application. CMHC has clarified that a single application between the property owner, head tenant and sub-tenant is acceptable or two separate applications is also permissible.
  • Funding limit: different provinces have announced different funding contributions to CECRA: for example, in Ontario the total program amount is over $900 million, in Quebec, approximately $550 million; in B.C., over $300 million.

Conclusion

The deadline for CECRA applications is August 31, 2020. Given the program’s complexity – especially for property owners with multiple tenants and/or locations – parties should begin gathering information as soon as possible. It will take property owners time to develop a full picture of their eligibility and to weigh the potential benefits of CECRA eligibility against other available alternatives, such as rent deferral agreements. Given the technical nature of the program, property owners and tenants who think that they may benefit from CECRA should seek legal and other advisory counsel as soon as possible to assist them with assessing their situation, determining eligibility for the program and navigating the application process and documentation requirements.

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