Focus On

Landlord & Tenant Law - Commercial tenancies - Lease - Landlord’s rules - Landlord’s remedies - Notice of default - Termination of lease (forfeiture) - Grounds - Non-monetary default

Thursday, July 07, 2016 @ 8:00 PM  

Appeal by the developer tenant, Ocean Park Towers (Ocean Park), from a judgment finding it breached its lease with the respondent, the Owners, Strata Plan VIS2030. Ocean Park leased parking stalls in a condominium complex from the Strata Plan under a 99-year commercial lease. The lease provided for use or occupancy for the parking of vehicles, and expressly limited use of the stalls to the parking of vehicles. The Strata alleged Ocean Park stored unlicensed, inoperable and derelict vehicles in the stalls in breach of its lease. The Strata further alleged that other items such as boats and trailers were stored contrary to the lease’s terms. The Strata issued a notice of termination of the lease for breach thereof. Ocean Park refused to give up possession of the stalls. It contended 12 stalls were being used in accordance with the lease for storage of a sub-lessee’s collection of validly licensed classic cars and boats. The Strata commenced a petition for declaratory relief and an order for possession. The chambers judge found Ocean Park in breach of the lease. The judge held that the lease was validly terminated, but granted relief from forfeiture, subject to conditions. Ocean Park appealed the finding that it was in breach of the lease.

HELD: Appeal dismissed. The chambers judge’s reasons for finding Ocean Park in breach of the lease, despite their conclusory nature, were not inscrutable given the evidence and the context of the record as a whole. The evidence of the impugned conduct that led to the notice of termination was undisputed. There was no ambiguity or vagueness about the nature of Ocean Park’s conduct. The judge was satisfied that the vehicles at issue were inoperable, unlicensed and derelict, and that based on their condition, they were stored rather than parked. The judge concluded that there was a clear distinction between the terms “parking” and “storage” based on the ordinary meaning of the words and the jurisprudence. Deference was accorded to the judge’s interpretation of the lease. No palpable and overriding error or conclusion that was clearly wrong or unsupported by the evidence was established.