Vendor vs. Purchaser: How to get the Upper-Hand in a Commercial Real Estate Negotiation

August 26, 2016

By: Aaron Grinhaus and Ardalan Ghassemi

Negotiating a commercial real estate deal is both a battle of guts and a battle of wits.  The addition or subtraction of one dollar or one condition can make the difference between a good deal and a bad deal for your client. There are a myriad of issues that arise during a commercial real estate transaction that are not usually dealt with in a residential transaction. The following are a few of the negotiation points that can add value for your clients and give you an edge in helping them negotiate a deal:

Price: Most deals come down to one important question: how much?! But what happens when there is no movement on the price? Generally, agreements will give the purchaser a chance to satisfy themselves as to the physical and financial conditions of a property during a due diligence period. The due diligence period is also a useful time to satisfy, or even eliminate, unnecessary conditions to make the deal more palatable and to give more bargaining power when discussing price. In addition, certain corporate structures require the approval of the purchase or sale price by the board of directors of the corporation before they are able to buy or sell. Front-end investigation of the corporate structures of both parties avoids costly delays and hurried decisions weeks or days (or sometimes hours!) before closing. The party who is more prepared usually comes out ahead in the deal.

Income Tax: So what happens if the price is a deal breaker? Commercial transactions often allow flexibility in allocating the type of income received. Things like HST, capital gains/income tax, etc. are often malleable when an expert in tax structuring is involved. Parties can save hundreds of thousands just by putting the right paperwork in order.

The purchaser should endeavor to negotiate the allocation of more of their purchase price towards the assets of the commercial deal (in a deal only involving real estate, the building on the property would be the biggest asset) since allocation of the purchase price to the building allows the purchaser to claim an annual capital cost deduction on the depreciation of the capital asset.

The vendor, on the other hand, if structured properly, should be negotiating a sale of shares in a holding corporation rather than a sale of assets from the corporation.

Harmonized Sales Tax (HST): HST is applied to a large number of commercial real estate deals and should be addressed in the agreement of purchase and sale; the APS should spell out whether HST is included in, or in addition to, the purchase price.

With proper advice, if both the purchaser and the vendor are HST registrants, they may elect to offset their HST obligations in order to avoid the tax altogether. However, this can put the vendor at risk: if the purchaser doesn’t pay, the tax authorities will move their target onto the vendor. To protect against this the vendor should have legal counsel knowledgeable in the area of tax and real estate in order to maximize the benefit and minimize the risks.

The negotiation process behind a commercial real estate transaction extends beyond price, location, and other classic real estate metrics. The team at Grinhaus Law Firm is uniquely equipped to solve problems and save deals by mitigating risk, negotiating flexible and creative terms, and maximizing tax benefits.  Please feel free to call or email, realtors® receive a free consultation.


Grinhaus Law Firm is a boutique business, estates, tax and real estate law firm located in mid-town Toronto.

ICSC Toronto 2016

August 25, 2016

We will be at The International Council of Shoppings Centres’ (ICSC) conference  in Toronto from Sept 19-21st this year, again!

Stop by our booth or schedule an appointment with one of our representatives.

Don’t forget to check out our listings and tenant clients.

Founded in 1957, ICSC is the global trade association of the shopping center industry. Its more than 70,000 members in over 100 countries include shopping center owners, developers, managers, investors, retailers, brokers, academics, and public officials.

Protecting Against Marijuana Grow-Ops

August 16, 2016

By: Zack Silverberg, Associate Lawyer at Landy Marr Kats LLP 

The recently elected Liberal government has pledged to legalize marijuana as a recreational drug useable by adult Canadians. As rumours swirl around what regulation surrounding production is going to look like, when looking to purchase a property, it is critical that investigations take place prior to closing with regards to the property (residential and commercial) and its potential history as a Illegal marijuana grow-operation (“grow-op”).

Illegal marijuana grow-operations are often hidden in residential homes or commercial buildings and can go on for years without detection by law enforcement. When operating in residential or commercial properties, grow-ops can significantly damage the property’s future resale value and the physical structures themselves.

Potential Damage to Properties

Grow-Ops are notorious for circumventing electricity monitoring in an attempt to avoid detection by the police for high electrical usage (required to grow plants indoors with bright lights). In order to circumvent the hydro boxes and tap directly into the electrical lines, often these grow-ops drill through foundations to access the direct electrical inputs from the grid.

Another common detection method for grow-ops is a lack of (or less) snow on the roof of a property as compared to neighbours. This indicates a larger heat signature emanating from the property and is also often caused by the excess lighting required to grow plants.

A small grow-op in a home might only function in the basement but larger scale operations have been known to fill every inch of a property with plants. There is a serious additional risk of mould developing in the walls, ceilings, attic, etc. resulting from the high moisture environment required for marijuana.

Additionally, as a result of the physical damage and potentially latent mould damage (if not properly remediated), there is often also stigma attached to properties with a storied past – especially if the properties were mentioned in the news.

Protecting Your Investment

When looking at a property, it is critical to make the proper inquiries with regards to the history of a property. Reasonable steps might include Google searches for the property’s address to ascertain if it was in the news for a drug bust, instructing inspectors to check for mould, electrical issues, and holes or cracks in foundations, along with the typical inspection points.

(Note: many inspectors attempt to exclude liability for such inspections in their contracts for inspection. This is something to be aware of and to discuss with potential inspectors when interviewing them.)

Another effective means of mitigating against risk is to inquire with the local police department, if timing permits within the closing period, as to whether or not there were any warrants.

Although vendors ought to disclose the past existence of a grow-op on the property and inquiries of the vendor should be made, these steps will help to lower (though will not eliminate) the risk of your potential investments going up in smoke.

LMK logo

The Toronto lawyers at Landy Marr Kats LLP have the legal experience, skill and expertise in civil litigation that clients need and can afford. Disability and insurance claims, automobile, personal injury, accident claims, class actions, employment law, wrongful dismissal claims, real estate litigation, commercial and shareholder/business disputes, mortgage enforcement, condominium litigation, construction lien and commercial tenancy disputes are examples of the depth and variety of civil litigation matters successfully handled by the lawyers of Landy Marr Kats LLP.

Yosi Behar is enjoying life in the fast lane

August 5, 2016

This past June, Yosi was invited by his long-time friend and business partner, Dr. Sylvester Chuang (Three Point Motors), to attend the grand opening of the Vancouver Island Motorsport Circuit – considered to be Canada’s first motorsport-themed country club.

“It was over the top and absolutely amazing,” said Yosi after visiting the circuit and country club. “The detail, the accommodation…everything imaginable was there.”

The car dealer group’s year-round resort includes a 15,000 square-foot, two-storey building that houses a clubhouse, presentation centre, observation deck and four pit garages.

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Yosi and other guests were treated to facility tours, on-track experiences and the opportunity to view a showcase of classic and modern motorcycles and automobiles.

Award winning songwriter and producer, David Foster flew in as well for the opening to pay tribute to his cousin, the late Billy Foster, who became the first Canadian ever to race in the Indianapolis 500. Nearly 50 years since Billy’s passing, the Victoria-born race car driver’s spirit was alive at the new track that day.

Yosi’s reaction after his roaring weekend?

“It was one of the most incredible places that I’ve ever seen. I’m looking forward to going back again soon.”

Upon Yosi’s return from the BC track, he remains involved in the automotive industry and continues to advise and coordinate numerous transactions with companies like Volvo Canada, Volkswagen, Lexus/Toyota, Honda, BMW, Mercedes Benz and others.

Life is so fast, so why drive slowly?

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Welcoming our newest sales representative

August 5, 2016

Meshesha picture

We want to welcome Meshesha Robel, our newest sales representative, to The Behar Group.

Meshesha, born and raised in Toronto, was a mortgage agent prior to joining The Behar Group four months ago. A real estate investor since his early twenties, he studied construction engineering at George Brown College.

What does he love most about his career? “I enjoy building clients value on a consistent and ongoing basis.”

How did he find out about The Behar Group? “Anyone looking for commercial real estate knows The Behar Group. I knew about their positive reputation in the real estate industry and all of their values (e.g. honesty, hands-on approach) align with mine.”

Fun facts about Meshesha:

  1. Favourite place you’ve ever travelled to?

“Italy! Everything is absolutely beautiful. The food is great, the scenery is amazing.”

  1. What’s one thing you can’t live without?


  1. What’s your favourite place in Toronto?

“King West. It’s a great area with lots of restaurants and a good after-work atmosphere.”

  1. What is one motto that you live by?

“Be honest.”

  1. What’s one fun fact about you that we don’t already know?

“I used to be a boxer, for about eight years…and I’m a serious poker player, really into it.”

To learn more about Meshesha and to see his current listings, visit: