By Natalka Falcomer

The most critical element you need to get a “good deal” is integrity. And this element is playing an even more critical role as I assist landlords and tenants navigate the Canada Emergency Commercial Rent Assistance (CECRA) program. The reason is simple: the program relies upon both parties to work together and requires very little by way of substantiating the eligibility of the tenant.



In other words, by participating in the program, landlords may be exposing themselves to significant legal and financial responsibility. While what I outline below is neither intended to provide a full scope of the program nor provide advice on eligibility, it is a brief summary of the questions I’ve been receiving that are not addressed by the government purveyors of the program.

1. Why isn’t my landlord applying for CECRA and what can I do?

Many lawyers are counseling landlords to not agree to the CECRA program if the landlord wouldn’t be financially able to grant the rent reduction without financial assistance from the government. Why? Because the tenant may not provide the required documentation in order to qualify, leaving the landlord holding the bag and exposed to claims from the tenant that the landlord promised to provide the reduction and, therefore, must fulfill this promise.  Nonetheless, the CECRA program is retroactive, meaning that landlords can always apply at a later date. If your landlord has not applied, you qualify for the program and you are prepared to provide the documentation to prove it, ask your landlords to commit to seeking the benefit of the CECRA program and to provide retroactive relief upon acceptance into the program.

2. What if I don’t have the documents to support that my business has been affected by COVID-19?

The program is clear: documentation is needed to support the loss of revenues. You, as a tenant, must also provide your registered business name, number of employees, consolidated revenues, lease area and the monthly gross rent for the period of April, May and June 2020. If you don’t have the documentation, such as a rent roll, audited financial statements and so on, then you expose yourself and your landlord to not only failing to meet the application requirements but, worse yet, an audit and the requirement to pay back the monies received. It’s unclear at this stage, but I suspect that any tenant or landlord intending to defraud the government will face financial and other ramifications.

3. What if my tenant has lied in order to qualify for the program?

The program is clear. If your tenant has made false or misleading representations to CMHC or is committing fraud or misconduct in connection with the application, and you, the landlord, become aware of this conduct, you must notify CMHC. If monies under the program have been received by the landlord, then CMHC has full recourse to recover the CECRA funds from the landlord.

CMHC’s recovery rights extend to further remedies available to it, which may include the landlord paying for additional fees incurred by CMHC to recover such amounts. What is more, if fraud occurs, the landlord is also obligated to “use commercially reasonable efforts to recover rent previously forgiven (and shall use such amounts collected to repay CMHC)”. This means that the landlord will have to incur legal fees, administrative costs and may be implicated in a more complex legal battle with CMHC.

Landlords contemplating applying for this program must ensure that their tenants have high levels of integrity and would qualify for this program. It’s also wise, if you are a landlord, to ensure that any rent reduction agreement required for this program include strong indemnification rights and default rights, which includes misrepresentation in favour of the landlord.

4. Is this a windfall for the landlord?

No. Funds are strictly for: “reimbursing impacted tenants for any rent paid above 25 per cent during the eligible period unless the tenant chooses to apply the previously paid rent against future rent any costs and expenses relating directly to the property, including any financing held by the property owner”; and “operation and maintenance and repair obligations (such as costs of common area maintenance, property taxes, insurance and utilities)”.

This means the funds cannot be used for the landlord to pay for a new car or to pocket any profits. The strict nature of the funds may also be a reason why landlords are unwilling to participate.

For example, will participating in the program give rise to an audit? What if the landlord also owns the property management company servicing the property – will paying the property management company qualify for the use of funds? What if the landlord can use the funds to pay for the mortgage and not the repair obligations, which take precedence according to the program? These questions will likely give any landlord cold feet.

5. Does this forgive rent that I owed before April 2020?

Tenants are attempting to use this opportunity to “get off the hook” for past rent owed. Landlords should be wary of such tenants and ensure that any rent reduction agreements make it clear that any rent falling outside the scope of the program is still owed. In fact, as a condition of participating in the program, landlords are wise to request that tenants first make good on any amounts outstanding.

It’s clear: to survive this crisis, tenants and landlords must act with integrity. Without it, neither will be pulled to safety.

12 COMMENTS

  1. The government chickened out on this one! It should be a mandate if the landlord has qualifying tenants. Otherwise, only empathetic landlords will apply. The rest who are more concerned with money than compassion?..they won’t do it. Why should they bother? As a result, a lot of struggling small businesses will go under because the government chickened out.

  2. It starts with landlords giving up 25% now…..debts adding up from tenants that are in this position because they could not manage their business well enough to build up a cushion of cash for a rainy day or had a product that was not really needed. And…..a government program that will shortly come to an end…..It’s a slippery slope to tenant staying on for free or at a greatly reduced rent……Better to cut the losses and find another tenant!
    This country and consumers are all ready so far in debt because of personal and government mismanagement and addictions to consumer goods and instant gratification being fed by low interest rates. Perhaps some of the “temptations” rightfully should go away.
    Reminds me of the 4 year old I saw years ago who was breast-fed by his mother every time he let out a squawk rather than say no or make an effort to make him responsible.

    • WOW you are actually judging a woman breastfeeding her child ? No wonder you are posting under a “fake” name. Shame on you !

  3. I agree not worth it. These programs have been made not to pay out. Same as the business programs. Ive wasted 100 of hours of my time and the answer is always no. One answer was the money for small business is being ised for the manufacture. Another answer was declined. Business not stainable. The rest was all bull shit. After 40 years of voting Liberal. He will never get our votes again. Most of these programs are made not to pay out and to look good for a seat on the Union Nations. Not in the best interest of Canadians. The smaller amount programs are paid out because hes buying votes.

  4. What a complete Joke. Did the Federal Government even think about this program ??? One of my LL’s refuses to do it , because he thinks he will go bankrupt. Im assuming it’s similar to the big REITs across Canada.

    I do see the point. But as a landlord myself… I was glad to apply .. it keeps the tenants happy and we are all in line!

    I’m the end it should definitely be the Tenant who applies.

  5. Did you hear about the real estate lawyer who actually personally registered a real property transaction? No! Neither have I.

    The chicken had come home to roost. People are upset for good reason. Others? Well. Not so happy. Sloppy bookkeeping. Hiding money. Ripping off the tax man. Playing both ends against the middle. Those are the true reasons people are not applying for any relief for commercial space. Sucks to be you. Serves you right.

  6. My landlord said they are not satisfied for the program, so what can I do as a tenant if my landlord doesn’t want to apply this program?

  7. I have no mortgage and the tenant although at fair market value is not at arms length because they lease the business . Bldg. and equipment from us. My wife and husband

  8. I note Judy’s comments above that speaks volumes for all Landlords who accepted risk, contrbute to society, pay taxes, scrimped and saved only for government to take away for party favorite is an abuse of power and counter productive. Government failed grossly being landlord years ago and turned their portfolio of subsidized rentals back to the private sector.

  9. Wow!!! What’s the point in being a landlord? Government should just buy everything in this country at market value if they feel they can tell property owners what to do with their properties and how to spend their income. Isn’t the level of taxation and regulation already high enough in this country???? The day is not very far off that they will be begging people to buy investment properties and take their chances with tenants.
    Not too many of us have the trust funds that young Mr. Trudeau and his ancestors have had to play with for generations. Really easy to be liberal and magnanimous with other peoples’ money. Most landlords that I know of purchased their holdings through years of scrimping, savings and personal sacrifices. Mr. Trudeau and his cronies are buying votes with your money once again and trying to make hard-working seniors(landlords) the “bad guys” – next thing you know we will be to blame for the collapse of the economy because we wanted to survive the Covid-19 Pandemic!

  10. As a commercial landlord with no mortgage on the property and the only expense attributed to the space the tenant occupies is property tax, would that mean I would only receive an amount of money from the Government in proportion to the tax attributed to that tenant’s space?

  11. Does the landlord need to provide a full rent roll for the property if they are applying for only 25% of their tenants?

    Aside from the tenant attestation form and the rent reduction agreement what else does the tenant have to provide that has a signing officers signature? I believe another letter containing business number, consolidated revenues for last fiscal period, number of employees and wording that confirms that they are impacted has to be provided to the landlord. Is there a template that the tenant can use where they can fill in the blanks?

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