In a commercial lease, liability for environmental contamination of leased premises depends in particular on the origin of the contamination, the time when it occurred, the activities carried out on the premises, the applicable legal obligations and the provisions of the lease.
Contamination can result in particular from the tenant's activities, those of the landlord, the previous use of the building or the actions of a third party.
The tenant may be held liable when contamination results from their activities or a breach of their legal or contractual obligations. However, the tenant is not automatically responsible for all contamination observed during their occupancy.
When contamination existed before the start of the lease, it is important to determine its origin, extent, and who might be responsible. The mere fact that contamination is discovered during the rental period does not necessarily mean that it was caused by the tenant.
Quebec's Environment Quality Act includes rules concerning the characterization and remediation of contaminated sites. Depending on the circumstances, certain obligations may be imposed on a person who has released contaminants or who has or has had custody of a site, even if they are not the source of the contamination, subject to the conditions and defenses provided for by law.
The commercial lease may also include specific obligations regarding:
However, the lease clauses that allocate environmental responsibilities between the parties must be examined in light of the obligations imposed by applicable legislation. A contractual agreement does not necessarily override obligations that a public authority may impose by law.
It is therefore important to check the environmental history of the building, the circumstances of the contamination, the lease provisions and the applicable legal rules in order to determine the respective responsibilities of the landlord and the tenant.