|
Landlord and Tenant (Commercial) - Exclusive Possession. Metro Ontario Real Estate Limited v. Embee Properties Limited
In Metro Ontario Real Estate Limited v. Embee Properties Limited (Ont CA, 2023) the Court of Appeal considered that a key element of a lease is that of 'exclusive possession':[15] With respect, the application judge erred in law in finding that Metro holds a leasehold proprietary interest in the common parking area. A leasehold proprietary interest arises under the terms of a binding lease agreement and provides a tenant with an exclusive right to possess, occupy, and use the property in question. This right exists against all of the world, including the landlord, meaning that any interference by a landlord with the property will constitute a trespass: Wal-Mac Amusements Ltd. v. Jimmy’s Dining & Sports Lounge, 1997 ABCA 183, at paras. 15-17; Exchange Corporation Canada Inc. v. The Corporation of the City of Mississauga et al., 2012 ONSC 6221 (Div. Ct.), at para. 22, citing Re B.A. Oil Co. & Halpert, 1959 CanLII 125 (ON CA), [1960] O.R. 71 (C.A.), pp. 80-81. In the case at bar, the critical element of exclusivity was absent because all of the tenants in the shopping centre have a right to use all of the parking spots for their customers.
|
