Written By Michael Chow, Craig Garbe, Chris Porter, Samantha Lush and Michelle Yung
Updated October 8, 2020: This blog is a further update to our previous blogs of April 27, 2020, April 30, 2020, May 20, 2020, June 17, 2020 and August 18, 2020.
On April 24, 2020, the Prime Minister announced the federal government reached an agreement in principle with all provinces and territories to implement the Canada Emergency Commercial Rent Assistance (CECRA) for qualifying commercial property owners and small business tenants.
The Prime Minister's Office and the Canada Mortgage and Housing Corporation (CMHC) have released further details on CECRA and eligible landlords can now apply for the program. Each province may establish additional criteria and conditions for CECRA, which is referenced below.
What Is CECRA?
CECRA provides financial assistance to certain commercial property owners which provide rent forgiveness to small business tenants affected by the COVID-19 pandemic. The government will provide unsecured forgivable loans to qualifying commercial property owners who agree with eligible small business tenants to forgive rent by a minimum of 75 percent per month for the months of April, May and June of 2020. CECRA is a program that is optional and not mandatory for property owners.
On June 30, 2020, the federal government announced that CECRA will be extended by one month to cover eligible small business rents for July 2020. Both existing and new applicants are now able to opt-in for that period of time.
On July 31, 2020, the federal government announced that CECRA will be further extended to include August 2020.
(Updated) On September 8, 2020, the federal government announced that CECRA will be further extended to include September, 2020.
Existing applicants are required to reapply to be eligible for September and can opt-in until October 30, 2020. New applicants have the choice of applying for the three-month initial period, four months or five months. The deadline to apply for CECRA was extended to September 30, 2020.
Who Is Eligible to Apply for and Receive CECRA?
Qualifying commercial property owners may apply for and receive financial assistance from CECRA. Commercial property owners include owners who own property which generates rental revenue from solely commercial tenants or a combination of commercial and residential tenants.
On June 1, 2020, the Government of Canada announced that CECRA would be made available to over 700 businesses who operate in Canada's national parks. These businesses were previously excluded from the program because the properties are located on federal lands. The Government of Canada has announced that it will waive up to 75 percent of eligible commercial rents for the months of April, May and June 2020, or equivalent amounts of annual rents from businesses that are renters in Parks Canada. Parks Canada will be contacting all holders of commercial leases and licenses of occupation in national parks, historic sites and national marine conservation areas to provide additional details on this CECRA relief. It remains to be seen if Parks Canada will administer CECRA for businesses operating in Canada's national parks or whether such newly eligible businesses will be directed to the CECRA portal operated by MCAP and or First Canadian Title (FCT).
What Is the Criteria for Small Business Tenants?
For a qualifying commercial property owner to receive financial assistance from CECRA, the small business tenant must:
- be paying no more than $50,000 in monthly gross rent per location pursuant to and as defined by a valid and enforceable lease agreement. Gross rent includes: basic rent (in a net lease) or gross rent (in a gross lease), operating and management costs, utilities, property taxes and percentage rent (if applicable). CMHC has provided a detailed list of inclusions and exclusions for the calculation of gross rent at the CMHC website at the link provided below;
- have experienced at least a 70 percent reduction in pre-COVID-19 revenues. Revenue reduction may be calculated based on revenues of April, May and June of 2019 or, for businesses which were not in operation in May through June 2019, the average of revenues from January and February of 2020; and
- generate no more than $20 million in gross annual revenues on a consolidated basis (at the ultimate parent level). Gross annual revenues are calculated based on the tenant’s 2019 financial revenues (using the 12-month period used to calculate the tenant's financials). If the tenant or its ultimate owner produces consolidated statements, then the tenant would use revenues reported for the group level of companies. If the tenant does not produce consolidated statements, then it is the specific revenue of the tenant that applies for the $20-million gross revenue test. Small business tenants also include not for profit and charitable organizations. Ground lessors and ground lessees also appear to be eligible. Small business tenants who are in sub-tenancy arrangements are also eligible provided the other program requirements are satisfied. Assuming the property owner is required to apply for the loan (and not the sublandlord), it is not clear how this will reconcile with an application for a loan for the tenant in a sub-tenancy and whether both the tenancy and sub-tenancy under the same lease would be eligible for the loan.
New applicants and tenants already approved in the April, May and June application are eligible for the July, August and September extensions (updated).
If a business had an average revenue decline of 70 percent or more in April, May and June 2020, they are deemed eligible for the July, August and September rent relief and will not have to show a revenue decline of 70 percent or more in those two additional months (updated). No additional documentation is required to be signed by the tenant(s) for opting into rent relief for July, August and September (updated).
No additional documentation is required to be signed by the tenant(s) for opting into rent relief for July, August and September (updated).
Small business tenants also include not for profit and charitable organizations. Ground lessors and ground lessees are also eligible. Small business tenants who are in sub-tenancy arrangements are also eligible; however, only property owners can apply for CECRA (and not sublandlords).
What Are the Other CECRA Terms and Conditions?
- The loans would be forgiven if the owner agrees to: (i) forgive the tenant's rent by a minimum of 75 percent for the months of April, May and June and, if applicable, July, August and September 2020; and (ii) not evict the tenant during the months in which the rent forgiveness applies. Not all tenants in an original application need to be included in the July, August or September extensions (updated).
- Owners would be eligible to receive forgivable loans from the government to cover up to 50 percent of three, four, five or six months' rent (April, May and June, and if applicable, July, August and September 2020) of the applicable tenant (updated).
- The owner's property does not need to be mortgaged by a lender. Property owners with or without a mortgage on the applicable property may apply for CECRA provided the other programs requirements are satisfied.
- The owner must have declared rental income on its tax return for the 2018 and/or 2019 tax years.
- If gross rent has already been collected from the tenant for the qualifying months, a credit to the tenant for a future month’s rent must be agreed upon between the owner and the tenant.
- For CECRA loans to remain forgivable, owners are prohibited from seeking recovery for rent abatement amounts to tenants after CECRA program expires.
- The owner and the tenant must submit the following documents to CMHC to apply for the CECRA loan:
- Rent Reduction Agreement (owner and tenant).
- Attestation (owner and tenant (and/or subtenant, if applicable).
- Forgivable Loan Agreement (owner and CMHC).
CMHC has provided sample forms of the above documents and should be reviewed by all owners and tenants prior to execution and submission. These forms can be viewed at the CMHC website at the link below.
- Other information required:
- Property: property address, property type, property tax statement, latest rent roll for each property and the number of commercial units.
- Owner: banking information (including bank statement), property owner contact information, co-ownership information and contact details for co-owners, if applicable.
- Tenant: tenant contact information, registered business name, lease area and the monthly gross rent for the period of April, May and June 2020.
Where to Apply for CECRA?
Property owners who qualify can register for CECRA online at the Government of Canada website. Once a property owner has registered for the program, the CMHC portal will be available for applicants to input the required data and upload necessary documents to apply and satisfy the requirements of the program.
Who Is Administering CECRA?
CECRA will be a collaboration between the federal, provincial and territorial governments and will be administered by CMHC. CMHC has engaged MCAP and FCT to deliver CECRA to the eligible owners and small business tenants. Owners and tenants may be contacted by either MCAP or FCT throughout the applicant validation and funding processes. More information on CECRA can be found on the CMHC website.
Certain provinces and territories are introducing additional or supplemental terms to CECRA:
Ontario
The Province of Ontario has passed Bill 192 – Protecting Small Business Act, 2020, which prevents landlords who are eligible under CECRA from evicting tenants or seizing any goods as a distress due to the non-payment of rent. The restrictions apply retroactively effective from May 1, 2020, to August 31, 2020.
British Columbia
On May 29, 2020, the BC Government issued an emergency act order (Ministerial Order No. M179), effective immediately, which prevents landlords who are eligible under CECRA from evicting tenants due to unpaid rent payments. This emergency act order also restricts the termination of lease agreements and the repossession of goods and property, as a result of the tenant's failure to pay rent when due. The emergency act order will remain in effect until the earlier of the termination of the CECRA program (currently September 30, 2020) or the date on which the BC state of emergency (as extended from time to time) expires (updated).
Alberta
The Province of Alberta passed the Commercial Tenancies Protection Act (CTPA) to restrict applicable landlords from evicting tenants or charging penalties for non-payment of rent due to the COVID-19 pandemic. The CTPA applies to commercial premises where: (i) the landlord and tenant are eligible for CECRA, but the landlord has not entered into a rent reduction agreement with the tenant that includes a moratorium on eviction; or (ii) the rent for the commercial premises is less than $50,000/month, the tenant's gross annual revenues are less than $20 million/year, and either the tenant has suffered at least a 25 percent loss of revenue or the tenant was ordered to close its business in the commercial premises pursuant to the public health emergency declared by the Alberta government. The restrictions are effective from March 17, 2020, until August 31, 2020.
We will provide further updates if further information is released by each province.
Who Will Fund CECRA?
The federal government and applicable provinces or territories will fund 50 percent of the monthly rent for the applicable three, four or five months. Commercial property owners will be responsible for 25 percent and the tenants will be responsible for the remaining 25 percent unless otherwise agreed to between the owner and the tenant.
What Is Next?
An additional rent forgiveness program for large business tenants which presumably pay more than $50,000 per month in gross rent has been mentioned by the federal government but no formal announcement has been made.
Assistance/Questions?
Please contact any of the authors by email or phone should you or any of your clients have any questions regarding CECRA or require any assistance in registering or applying for CECRA.
Please note that this publication presents an overview of notable legal trends and related updates. It is intended for informational purposes and not as a replacement for detailed legal advice. If you need guidance tailored to your specific circumstances, please contact one of the authors to explore how we can help you navigate your legal needs.
For permission to republish this or any other publication, contact Amrita Kochhar at kochhara@bennettjones.com.
Bennett Jones