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Do you understand your commercial lease agreement?

breaking your commercial lease agreement in Ontario

Disclaimer: This article on commercial lease agreement in Ontario is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Our office has been receiving more and more inquiries recently relating to commercial leasing disputes.  This is to be expected to some extent – after all, we are in a recession – and we want to make sure that all of our clients are aware of their rights and responsibilities when it comes to their leases.

Of course, every situation and lease is unique. If you would like to discuss your lease, please get in touch with our office as soon as possible. We are well-versed in commercial tenant law, and we can provide you with advice and guidance on how to proceed.

Your Commerical Lease Agreement in Ontario

Many landlords reach out to us because they are having significant difficulties with their tenants, such as their tenants defaulting on rent or not following the terms of their lease. What are your options?

Well, what does your lease say? Generally speaking, your lease is going to be your ground zero. If you have a well-prepared lease, you have more options. On the other hand, if you do not have a strongly worded, clear, and enforceable lease, you have fewer options. 

The reality is that there are not a lot of protections under common law or in the legislation, specifically the Commercial Tenancies Act. Your lease is your best form of protection. We cannot overstate it enough: if you are not sure if your lease will protect you from a difficult tenant, you do not want to wait until there is an issue to find out.

Most savvy commercial landlords have an exceedingly good lease that gives them all the rights and “hold the cards,” so to speak. So what does that mean for tenants?

Signing a commercial lease as a tenant

You may be so excited to find the perfect space for your growing business that you are ready to sign anything. However, you need to ensure that the terms of the lease protect you and your business as much as possible.

You have rights as a tenant, but if you sign away those rights when you sign your lease, then you cannot avail yourself of the remedies provided for in the Commercial Tenancies Act. You must understand what you are signing and the lease must be able to also serve your interests.

That is where we come in. Before you sign your rights away, talk to our team. Too often, we see great businesses with their hands tied by a landlord-provided lease, and we do not want that for you. We can help you understand what the terms really mean and negotiate the terms that will hold your business back.

Protecting your interests with Beeksma Law

At Beeksma Law, our comprehensive experience covers both sides of the table. For landlords,  we can help with drafting and enforcing your leases. For tenants, our experience helps to ensure that your rights are protected while you sign a lease.

We believe in empowering our clients. When you are armed with knowledge, you can make informed decisions that are in the best interests of your business. We clearly explain the law and ensure you understand what is at stake before signing on the dotted line. Book a call with our team today – we are happy to hear from you!

Buying a Book of Business in Ontario

Disclaimer: This article on buying a book of business is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

In many businesses, entrepreneurs have to face the question of succession planning. Will the business be sold to someone? Should it pass on to a family member? Will it merge with another organization? These are all important questions to consider, and having a plan in place can help ensure that the business continues to be successful.

Many professionals are getting older (for example, the average financial advisor is now in their 50s), with retirement looming on the horizon. For new professionals in the field, this may be the expansion opportunity that you’ve been waiting for. After all, what better way to expand than to acquire a well-established adviser’s clients and business?

Expanding your business this way is no small matter. Making sure that your interests are protected – whether you are the purchaser or the seller – requires legal expertise, good advice and a savvy business sense.

In this article, we will talk about buying this specific type of business and different areas that you need to consider.

What is a “Book of Business”?

When acquiring a financial advisor’s business, you will likely be purchasing the book of business. This is the advisor’s client list and their associated assets. It typically includes detailed information about each client (e.g., contact details, relationship history, and account balances).

However, buying a book of business is an intangible asset and can be difficult to value. It is much different than buying (for example) a retail location with merchandise, equipment and the associated liabilities. The right legal and financial due diligence is required when considering such a purchase and its potential for success.

Much of the value behind a book of business lies in its “goodwill” or the value of the relationships between the advisor and their clients. Factors like trust, satisfaction with services rendered, as well as reputation can have a major effect on whether or not a client decides to stay with the business after an ownership change.

Questions to Consider

When considering buying a book of business, there are many questions to consider, such as:

  • How will you determine the value of the book of business? Will multiple appraisals be required? When should the seller provide a finalized list of clients and their assets?
  • What will the transition period look like? How will the clients be informed? Will the seller make introductions and work towards a smooth transition? How will existing staff, if any, be retained and/or rewarded for their loyalty?
  • What other financial obligations (such as taxes) need to be taken into account when making the purchase?
  • What kind of non-competition clause should you include to ensure that the seller does not take business away from you?

Of course, each transaction is unique and will have its own specific requirements. It is important to have experienced advisors and lawyers on your side to make sure that you are getting the best deal possible.

Buying a financial advisor’s book of business can be an exciting opportunity for entrepreneurs looking to expand their businesses. However, it requires careful consideration and due diligence in order to ensure that all parties

Take the next step with Beeksma Law

Whether you are looking to buy another advisor’s book or sell your business, Beeksma Law can help. Our team of experienced lawyers can guide you through the process and make sure your interests are protected every step of the way.

With our experience and expertise, our clients can rest assured that the deal will be as hassle-free as possible. As entrepreneurs ourselves, we know what your business means to you and take it just as seriously as you do. To learn how we can help you buy or sell a book of business, contact us for a consultation today.

How to contest (or challenge) a will in Ontario?

a man reviewing a document, considering whether he should challenge or contest a will

Disclaimer: This article on challenging a will is intended for the purposes of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

Estate disputes are becoming increasingly common, as family members wish to challenge the contents of their deceased relative’s will for a number of reasons.

If that’s the case, can you challenge a will? Who has the right to do so? What are the different grounds for contesting or challenging a will? These are the questions that we will answer in this article.

At Beeksma Law, we are passionate about estate law. From creating clear, complete estate documentation to helping you navigate any legal issues following a death, we are here to help.

Who can challenge a will in Ontario?

In the province of Ontario, only certain individuals have the right to challenge a will. We call these individuals “interested parties.” Under Ontario’s Succession Law Reform Act (SLRA), interested parties are those who “appear to have a financial interest” in the estate. This could mean those who would be beneficiaries under the intestacy provisions of the Act if there were no will, or anyone else who can demonstrate that they were financially dependent on the deceased.

Typically, challenges are brought by children, grandchildren, spouses, siblings and other close relatives.

What are common grounds for challenging a will?

The court will not invalidate a will that treats you unfairly or if you do not receive what you felt entitled to inherit. Simply put, there is no legal requirement to be nice or to share an estate equally. It’s also important to note that the onus is on the person bringing forward a challenge to prove that the will is invalid. This means that the courts will assume that the will is fine and it is up to you to convince them otherwise.

However, you could successfully challenge a will under a few grounds. Let’s consider some of those.

Lack of Capacity

The law requires that someone making a will knows and understands the impact of what they are signing. Because of someone’s capacity, someone may question the validity of a will. Therefore, an interested party may challenge a will if the testator (the person making the will) did not have the mental capacity to understand:

  • what they were signing;
  • what it meant for their beneficiaries; and
  • how another party was likely to interpret the will at the moment that the testator reviewed and signed the will.

This is particularly important – you must prove that the testator lacked capacity at the time of signing. There is a principle in law called a “lucid interval”. This means that while a person may struggle with cognitive function, they can still have lucid intervals where they can reason and make decisions. If that is the case, then a will made during this period could be valid.

Undue Influence

Undue influence is another common ground for contesting wills. This is when an individual forces, coerces or manipulates the testator into making decisions that were not in their best interests. This could be by another family member, a caregiver, or even a lawyer or other professional involved in the drafting of the will.

The court can consider factors such as whether the will benefited anyone too highly in a disproportionate way. It can also consider whether the testator was influenced by someone they had an unequal relationship with (such as a caregiver).

We typically see this among elderly people who live alone. A “new friend”, caregiver or one of their adult children may take advantage of their relationship with that person to try to influence their decisions in order to benefit from their will or powers of attorney.

If you believe that any of these conditions have been present, then a court challenge might be the right course of action for your case.

Changed Circumstances

We noted the example of actor Heath Ledger in an earlier article. He created a will, but did not update it after the birth of his daughter.

In some circumstances, an interested party can challenge a will if there is evidence that the testator did not update it to reflect changes in their circumstances. Those circumstances must be so noteworthy that the will no longer reflect the testator’s true wishes (i.e. to care for their children).

Fraud or Forgery

It is possible to challenge a will if there is evidence that someone forged or altered it in any way. It is also possible to challenge a will if someone fraudulently obtained the signature of the testator.

Contesting a Will in Ontario

Challenging a will in Ontario involves a few steps. First, you need to file a Notice of Objection. This is where you explain why you’re objecting to the will and state your interest in the estate (like being the child of the deceased and a beneficiary in a prior will). When you file this notice, the court will not move forward with any applications for the appointment of an estate trustee (or executor) until the objection is resolved.

What if an estate trustee has already been appointed? Then, you will have to file a motion demanding the return of the Certificate to the court.

Courts in Ontario can try to determine what the person who made the will (the testator) truly intended. Figuring out their intentions can be tough, especially if they’re no longer around to explain.

Challenging a will is a serious legal matter, and getting the process right is essential to protect your interests.

When You need to Contest a Will in Ontario, Contact Beeksma Law 

At Beeksma Law, we are experienced in dealing with will disputes and can help you through the process. We understand that this is a difficult time for families. Our team of estate lawyers balances compassion with professionalism to be your guide and advisor through this process. If you would like to discuss your case further or any of your estate planning needs, please do not hesitate to contact us today. We are here to help!

For-Profit and Not-For-Profits: What’s the Difference? 

Disclaimer: This article on For-Profit and Not-For-Profits is intended for the purpose of providing information only. It is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

The differences between for-profit and not-for-profit corporations in Ontario can be significant and are important to understand if you’re considering setting up either type of corporation in the province. While both types of business entities have similarities, there are also some distinct differences that you must consider.

In this blog post, we will explore the key distinctions between for-profit and not-for-profit corporations in Ontario. This information can help you make an informed decision about which type of corporation is right for your business.

What is a not-for-profit corporation?

Not-for-profit corporations, also referred to as “nonprofits” or NFPs, are businesses that are set up to provide goods, services and assistance to the community. They do not offer a financial return on investment (ROI) and instead provide benefits to their members and/or the public at large.

Not-for-profit corporations typically serve a certain sector of the community. For example, a community garden or athletics group may opt to incorporate as a not-for-profit corporation to help with obtaining funding. 

What law governs for-profit and not-for-profit corporations?

The Ontario Business Corporations Act governs for-profit corporations, while the Ontario Not-for-Profit Corporations Act governs not-for-profit corporations.

Who owns for-profit and not-for-profit corporations?

The ownership structure of for-profit corporations is typically linked to the shareholders, who own the company’s assets and profits. In contrast, Not-for-Profits are controlled by their members, who act as custodians of the organization’s assets and activities.

What is the cost to set up a not-for-profit corporation?

The cost of setting up a for-profit corporation in Ontario depends on several factors. These factors include the number and structure of shares issued, filing fees and other requirements such as obtaining professional advice or assistance.

For nonprofit organizations, your cost would include all of the factors noted above. However, there are additional costs to incorporate under the Not-For Profit Corporations Act. These costs include filing fees, legal review costs and more. These corporations are more complicated and the fees, therefore, reflect those additional considerations.

Requirements for Non for Profits

There are some requirements for not-for-profit corporations that do not apply to for-profit corporations.

For example, a for-profit corporation can set out any number of directors in the Articles of Incorporation. By contrast, a not-for-profit corporation must have a minimum of three directors.

Additionally, a not-for-profit corporation must set out the corporation’s activity and how it will assist the community. Generally speaking, you would include between two and six paragraphs outlining the intention of the corporation. You must carefully word that statement to avoid confusion or legal troubles down the road – this is one area where you definitely need to seek legal advice before filing!

Finally, a not-for-profit corporation includes the following special provision: Commercial purposes, if any, included in the articles are intended only to advance or support one or more of the non-profit purposes of the corporation. No part of a corporation’s profits or of its property or accretions to the value of the property may be distributed, directly or indirectly, to a member, a director or an officer of the corporation except in furtherance of its activities or as otherwise permitted by this Act.

Can a not-for-profit earn a profit?

Absolutely! For example, a not-for-profit can earn a profit from activities that are related to its purpose or mission. However, you must distribute any profits back into the organization to help it achieve its goals and objectives, such as providing services or products to its members.

To Summarize…

For Profit CorporationsNot For Profit Corporations
Is governed by the Ontario Business Corporations ActIs governed by the Not-For-Profit Corporations Act
Is owned by the shareholdersIs owned by the members
Can earn a profit Can earn a profit but must distribute that profit back into the organization

Setting up your not-for-profit corporation with Beeksma Law.

At Beeksma Law, we understand the unique needs of not-for-profit corporations and can help you navigate the legal process. We are here to help you navigate the process and answer any questions that you may have. To book your complimentary consultation, please click here. We look forward to speaking with you!

How to Prevent a Real Estate Deal From Falling Through

Disclaimer: This article on your real estate deal is intended for the purposes of providing information only and is to be used only for the purposes of guidance. This article is not intended to be relied upon as the giving of legal advice and does not purport to be exhaustive.

You’ve sold your house! You’re packing up and getting ready to move. But then, seemingly out of nowhere, it looks like the deal may not actually go through.

Or perhaps partway through the transaction, an issue arises that needs to be addressed before the deal can be finalized. Regardless of the circumstances, it’s important to know your rights. It’s important to know how to protect yourself when a real estate transaction goes off the rails.

In this article, we will discuss why a deal may suddenly be on shaky ground. Then we will outline what your options are if that is the case. We always welcome you to book a complimentary consultation with our team to discuss your situation in greater detail.

a man considering his real estate transaction in hamilton

Why might a real estate purchase or sale not close?

First of all, you cannot back out of a real estate deal because you have changed your mind. You signed a legally binding contract and the other party has the right to sue you for breach of contract.

There are a few reasons why a transaction may fall through or fail to close on the closing date. Here are just some that our office have come across.

The buyer has trouble obtaining financing

This was relatively common when the market had cooled. The offer price and the house’s value to the bank were no longer equal. The bank would no longer provide financing for the offer price. Therefore, the buyer had to come up with the difference or the deal was lost.

The buyer may have initially been able to qualify for a loan. However, since then, their credit rating changed or their income dropped. The bank could no longer support the loan and the purchase had to be cancelled.

The title search reveals problems

The title search on a property looks at the history of ownership. A title search may reveal that someone has made a claim to the property. It may reveal liens that haven’t been cleared up. If there are these or other issues with the title, it can be difficult to close on the closing date.

The house inspection reveals problems with the home

A home inspection can reveal previously unknown issues such as mold, structural problems or other defects.

a sign saying "sale pending" illustrating that this real estate deal may fall through.

How to save a deal that is on the rocks

First and foremost, you want to seek legal advice as soon as possible with any real estate transaction.  Your lawyer can provide legal advice and strategies to salvage a deal that is in danger of not closing. She can also make sure to document your file while things are going well. This way, you have all of the evidence on your side if matters do not go as planned.

You have a few options that you can pursue to resolve your issues.

Extend the closing date

If your matter can be resolved within a short amount of time,  you can ask the seller to extend the closing date. This gives you time to make sure all of your documents are in order and that any outstanding issues are resolved.

Consider a vendor take-back mortgage

If you are having trouble getting financing, you may consider a vendor take-back mortgage. This is where the seller agrees to provide secondary financing for part of the purchase price.

Negotiate an abatement

If the issue is with the condition of the property or something on title, you can negotiate an abatement. This is when the seller agrees to reduce the purchase price of the home in order to account for any outstanding issues or repairs that need to be done.

Pursue litigation

In the worst-case scenario, if negotiations and attempts to resolve the issue have failed, you may need to pursue litigation. This is the last resort, as it can be costly and time-consuming. It is also important to remember that any legal action taken must be within the confines of the contract entered into between buyer and seller.

Of course, you’ll be in a better position to pursue litigation if you have been working with a real estate lawyer who is well-versed in both the transactional and litigation aspects of real estate law (like Beeksma Law!).

It is important to remember that there are options available to you if a real estate purchase or sale does not close on the closing date.  However, it is always advisable to seek legal counsel so that you can make sure all of your bases are covered and any potential issues can be dealt with in an efficient manner.

What happens to the deposit if the deal falls through?

This is a question that we get fairly often when a deal looks like it may not proceed. The answer is…it depends.

There is no guarantee that it will be given to the seller. It will depend on the language that is used in your purchase agreement. It will also depend on the actual damages suffered by the seller.

For example, if the deal falls through and the seller is able to find a new buyer at the same price and terms, then the seller may not be entitled to keep your deposit. However, if the seller cannot find a new buyer or must accept less money for their property, they may be eligible to receive damages from the buyer in the form of your deposit.

Smoother Real Estate Transactions with Beeksma Law

The last thing that anyone wants is a stressful, drawn-out dispute over a real estate transaction. At Beeksma Law, we are here to help make sure that we close your deals and if it doesn’t, then you have the best chance of recovering any damages that may be owed.

a real estate deal going through, with one party handing keys to the other

Our team is highly experienced in both real estate transactions and litigation so we can assist you no matter what stage your deal is at.

If you have any questions or would like to speak with a real estate lawyer regarding a potential transaction, please don’t hesitate to contact us today! Let us help make your real estate transactions smoother and stress-free!