In these difficult times, creditors will see several debtors in default due to their incapacity to pay their debts as they come due, forcing them to take appropriate measures to protect their rights. A good example is the Owner-Landlord who will or may already have tenants who have failed to pay the rent for April or May, either because the tenant has been closed for weeks following the implementation of governmental restrictions on business, or because their business was closed down at the request of their financial institution who is looking to reduce expenses to a minimum, failing which they would lose their credit facilities.
Some will not survive this crisis, and landlords will inevitably face net losses. But what about those who will survive, which we believe will be a majority?
Just like financial institutions, several major landlords already announced that they were amenable to an agreement with their tenants in order to defer the payment of the rent, since the rent remains payable even in these exceptional circumstances. Obviously, it is preferable to reach an agreement in order to mitigate each others’ losses, rather than have a closed door when the society reopens for business, with the associated legal bills!
While you are negotiating with your tenants/debtors in order to defer one or several payments of rent or other, we suggest that you take the time to review the situation of your debtor, making sure that you will eventually be paid. In the situation where your debtor is a corporation with little or no tangible assets or assets already covered by a guarantee, other than the possibility to ask for a second ranking hypothec, we invite you to consider the possibility of obtaining a suretyship from one of the shareholders and/or principals of the debtor in order to guaranty your deferred payment. This suretyship can be general or limited to the deferred payment. There are, of course, other types of guarantees, like immovable hypothecs, but if you are in a situation where your debtor is in default of payment or needs a deferral, there are likely no immovable properties free of charges, except maybe a principal residence.
Suretyship is a nominate contract ruled by the Civil Code of Québec and must follow certain guidelines to be valid. A suretyship must be expressly consented to and preferably be in writing to be executed. We invite you to contact us for any questions.