Form and content of the lease

A commercial lease is subject to less legislative oversight than a residential lease, but offers multiple opportunities for the parties negotiating it.

Form

In a commercial lease, no particular form is required. The lease may be written (notarized or under private seal) or even verbal. Since there is no mandatory form, it is most often drafted by the lessor.

Content

In a commercial lease, it is the will of the parties that counts, subject to rules of public order. The parties may therefore derogate by agreement from the provisions of the Civil Code of Québec that are not rules of public order.

Rules of public order that impact commercial leases are normally defined by the jurisprudence, and include the following:

• Obligation to provide enjoyment of the property
• Obligation not to refuse a lease assignment or sublease without a serious reason
• No restrictions on the right to publish the lease

Certain sections of the commercial lease negotiated between the parties could limit or restrict the scope of some of the provisions in the Civil Code of Québec recognized as being of public order, but without prohibiting them.