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May 25th Update: OCERA: Ontario-Canada Emergency Commercial Rent Assistance Program

POSTED May 25, 2020 BY Yuri Kostowskyj Blog

The Canada Mortgage and Housing Corporation (“CMHC”) has provided updated details with respect to the Ontario-Canada Emergency Commercial Rent Assistance Program (OCECRA). Ontario applicants can register for application as early as Tuesday May 26, 2020. Once registered, the application portal will be available 24 hours a day/7 days per week. The deadline to apply is August 31, 2020.

The updated information is provided below, for OCECRA details please review our previous correspondence at https://fkllp.ca/blog/.

Please note that additional information, including samples of the various attestations/agreements noted below can be obtained through CMHC’s website https://www.cmhc-schl.gc.ca/en/finance-and-investing/covid19-cecra-small-business.

Application requirements for ALL impacted tenants:

  •  Tenant or Sub-tenant’s Attestation: Property owners must have each of their eligible commercial small business tenants and/or subtenants sign an attestation. Tenants are responsible for attesting to their eligibility with the program requirements.
  • Property Owner’s Attestation: Property owners must sign an attestation confirming the information relating to the property owner and the property provided in the application is correct and attest to their eligibility with the program requirements.
  • Rent Reduction Agreement: All application documents will be accessible on May 25, 2020. Property owners must enter into a legally binding rent reduction agreement with each impacted tenant to confirm the rent reduction in accordance with the program terms and conditions. This agreement is conditional upon final approval of the application for CECRA for small businesses.
  • Forgivable Loan Agreement: Property owners must agree to the terms and conditions in the application and outlined in the forgivable loan agreement.
  • Property information includes property address, property type, property tax statement, latest rent roll for each property and the number of commercial units
  • Applicant information includes banking information (including bank statement), property owner contact information, co-ownership information and contact details for co-owners
  • Tenant information includes tenant contact information, registered business name, number of employees, lease area and the monthly gross rent for the period of April, May and June 2020

Program updates:

  • Clarification that the OCECRA applies to gross rents (i.e. rent, TMI, and % of sales as applicable). Please see the “FAQ for Property Owners” section of the CMHC website link noted above for further details of what is and what is not included in the definition of gross rents.
  • The requirement that OCECRA funds are to be used to first reimburse impacted tenants that have paid in excess of 25% of their gross rents during the program period and then to fund the operating cost of the property (including any financing obligations).
  • Clarification that OCECRA loans will be forgiven on December 31, 2020.
  • Clarification that properties without a mortgage are now eligible under the CECRA.
  • Gross revenue determination has been defined as the small business tenant’s 2019 financial revenue based upon the 12-month period the tenant uses in its financial statements.
  • Clarification that if a small business tenant does not regularly produce consolidated statements, then a landlord uses the specific revenue of the tenant and ignores the revenues of the consolidated group with respect to the $20,000,000 threshold.
  • Clarification that landlords must apply for all 3 months of the program inclusive of all impacted tenants in one application. Applications prepared prior to the end of the program require an impacted tenant to project May/June revenues.
  • Clarification that property owners leasing to non-arms length impacted small business tenants can apply for the program provided there is a valid lease agreement and the rent under the lease is at market rates.
  • Eligible small business tenants in sub-tenancy agreements are now eligible provided the lease structures meet the program criteria
  • Small businesses that began operations on or after March 1, 2020 are not eligible.

We recommend that all landlords who intend on utilizing the program immediately register via the CMHC website provided above. Further, we recommend that impacted small business reach out to your landlords with respect to the OCECRA.

The OCECRA will require significant resources in order to assess the eligibility of the property, the eligibility of the tenants, the gathering of the required property/applicant/tenant information, the preparation of attestations and agreements, as well as completing the application. Please reach out to your contact at Fruitman Kates should you have any questions and/or require support.