Clarity and precision, these are two essential elements that a commercial lease must demonstrate.
The signing of a commercial lease often leads to disagreements between a landlord and tenant regarding the interpretation of the definition of the "rentable area of the leased premises".
Thus, the sole tenant of a building, whose rent is supposed to be based on the rentable area as defined by the "BOMA" measurement method, turns to the Court* to determine the leased area. The wording of the disputed clause is ambiguous in several respects; indeed, it states on the one hand that the rentable area mentioned in the lease reflects the tenant's calculation, and on the other hand, the final calculation will be made later according to the BOMA method.
In such situations, the court declares that the Civil Code of Quebec advocates an approach that seeks the true intention of the parties in interpreting a contract. It is therefore necessary to "resort to extrinsic evidence to the contract" such as the "negotiation atmosphere, the conduct of the parties after its conclusion, and relevant customs."
In its decision, the court recalls certain elements of the BOMA standard:
- "rentable area means the usable area of an office space, increased by its proportionate share of the common floor areas and common areas of the building";
- if there are multiple tenants in a building, the entire building must be measured and the common spaces must be allocated to the occupants prorata;
- in the presence of a single tenant, the enclosed area inside the permanent exterior walls of the building is calculated, without any deductions.
After studying the circumstances surrounding the conclusion of the contract, the judge rules in favor of the landlord and declares that the leased area is equivalent to the built area. In a contract, even if one wants to take all necessary measures, it is necessary to be precise, especially regarding the method for determining the rentable area of the lease.
*CA 200-09-008933-159
