Is the Lease really the entire agreement ?
Usually the answer is YES, but sometimes the court will look outside of the lease to examine an issue that appears to be ambiguous.
Notice of Rent Default vs. Notice of Non-Rent Default ?
There are 2 types of notices that must be taken into consideration:
(i) One is a notice of rent default, which tells the tenant it is in default, and usually tells the tenant it has so many days to cure that default, failing which the landlord will exercise all of its legal rights.
(ii) The other notice is a notice of non-rent default, which must be given by the landlord (under the Ontario Commercial Tenancies Act) before it exercises any right to terminate the lease.
Significance of a “Non-Disturbance Agreement” for a tenant ?
A non-disturbance agreement is absolutely essential for a tenant in that it provides that the landlord, if it defaults in its mortgage, must obtain a non-disturbance agreement from the mortgagee of the development; which basically says that if the tenant is not in default when the mortgagee takes over possession of the development, then the mortgagee must honour the term of the tenant’s lease, if the tenant is not then in default.
If there is no non-disturbance agreement in favour of the tenant, a mortgagee has no relationship whatever with the tenant, so that it can simply terminate the tenant’s lease on 6 months’ notice.
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