The lender sought possession of the borrower’s commercial property. The property was occupied by four companies who were the four defendants in the proceedings, and claimed to be tenants under the borrower. The borrower and the occupants are all controlled by the same person.
In breach of the terms of the mortgage, the borrower did not procure the consent of the lender in letting the property. The borrower, however, claimed that the lender verbally consented to month-to-month tenancies, and the occupants in turn claimed waiver and estoppel from relying on the consent term.
The lender said that no such consent was given, and that in any event, no consent could have been given for written leases that post-date the supposed consent, waiver or estoppel. The issue for the court to decide was thus whether the borrower’s version of events gave rise to a sufficient factual dispute as to waiver or estoppel to warrant the lender’s possession application being dismissed.
The court found that there was no valid estoppel argument on the facts, and that even if there was verbal consent given by the lender to the leases, it did not operate as a waiver of the requirement for written consent to the leases entered into after that date. The lender was thus entitled to an order for possession. The occupants were granted a fairly lengthy stay of 60 days to allow them time to remove their numerous goods and equipment from the property.
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