Following are our summaries of the civil decisions of the Court of Appeal for Ontario for the week of January 15, 2024.

摘要

市场经济交易中，企业以自有财产对外抵押，提供担保的情形屡见不鲜。上述企业进入破产程序后，易引发破产法与担保法交叉问题。破产企业以自有财产为第三人的债务提供抵押，主债权债务发生于债权人（抵押权人）与第三人之间，抵押权人若在抵押人的破产程序中主张权利，管理人审查认定过程中，易与破产企业为自己的债务提供抵押混淆，单纯的抵押权人可能被认定为“抵押债权人”。本文立足于物权和债权的二分性原则，探讨了在破产程序中，对破产企业仅享有抵押权的权利人的权利认定与行权规则。

关键词

抵押权人 别除权 别除权人 权利行使

2023 was a year where we saw buyers and sellers of commercial real estate assets not necessarily always aligned on pricing against a backdrop of lending headwinds. As the year drew to a close, visible signs of distress were reported to be emerging in certain corners of the real estate sector which may well bring fruitful opportunities in 2024 for property investors looking to acquire new assets via distressed or enforced sales. But what is a "distressed" property sale and what are the key considerations for buyers looking to acquire these types of assets?

Good afternoon. Following are this week’s summaries of the Court of Appeal for Ontario for the week of December 18, 2023.

Recently, two significant distressed companies with thousands of commercial leases, Rite Aid and WeWork, each filed chapter 11 bankruptcy cases, seeking in part to rationalize their geographic footprints through the rejection of a substantial portion of their lease portfolios.

Between 1 April and 30 June 2023, there were 6,342 registered company insolvencies, which is the highest number of insolvencies since the second quarter of 2009, and a 9% increase on the previous quarter of 2023.

The changes corresponding to the proposals are suggested in the IBBI (Insolvency Resolution Process for Corporate Persons) Regulations, 2016, and the IBBI (Liquidation Process) Regulations, 2016. The draft regulations have been annexed to the proposals.

Comments on the proposals and the draft regulations have been sought by November 28, 2023.

The Board’s proposals are as follows: –

• Registration of corporate debtor’s real estate projects under RERA

In a recent decision in the case of Infrastructure Leasing and Financial Services Ltd. v. HDFC Bank Ltd. and Another, the Supreme Court of India (“Supreme Court”) has held that the rents receivable by a borrower which was assigned to a lender of a lease rental discounting facility would not be treated as an asset of the borrower, and thus fall outside the purview of the asset and security freeze order of the National Company Law Appellate Tribunal (“NCLAT”).

Brief Facts

Introduction

A few weeks ago, real estate practitioners, investors, speculators, lenders and aspiring homeowners were all surprised to learn that The One, a monster development at 1 Bloor St. West in Toronto, was being placed into receivership. The project undertaken by Sam Mizrahi and his company, Mizrahi Inc., is slated to be an 85-storey mixed-use residential tower in the heart of the city, comprising retail stores, a restaurant, a hotel and luxury residential suites. It would be an iconic addition to Toronto’s growing skyline…

It’s not the first occasion that a major serviced office provider has landed in a corporate restructuring but it may be the most high-profile. The current evolving situation follows on from such previous fireworks as the failed IPO, a corporate reorganisation that swapped a US headco “inc.“ for an “LLC” (prompting litigation at the end of the last decade), and continuing market uncertainty as to the robustness of the brand.