EQUIPMENT PPSA

Contact Neufeld Legal for commercial leasing legal matters at 403-400-4092 / 905-616-8864 or Chris@NeufeldLegal.com

The Personal Property Security Act (PPSA) forms the bedrock of secured financing, built on parallel, yet substantively harmonized, provincial and territorial statutes (e.g., PPSA (Ontario), PPSA (Alberta)). This legislative framework fundamentally governs the creation, registration, and priority of security interests in movable assets, with the Equipment PPSA being a critical mechanism in commercial lending.

A Security Interest under the PPSA is a broad concept: it is an interest in personal property (the collateral) that secures payment or performance of an obligation. Critically, the PPSA focuses on the substance of the transaction - whether it secures a debt - rather than the form (such as a mortgage, conditional sale, or a lease over one year).

Equipment is one of the three primary classifications of "goods" under the PPSA (alongside Inventory and Consumer Goods). Equipment is defined as tangible, non-inventory, and non-consumer personal property that is used or intended to be used in the debtor's business. This includes:

• Heavy machinery and industrial tools.

• Construction and commercial vehicles (like trucks or forklifts).

• Office technology, medical devices, and other business assets.

The classification of collateral as "Equipment" is crucial because it dictates where the secured party must perfect their interest and determines priority rules, particularly concerning Purchase Money Security Interests (PMSIs).

For a lender (Secured Party) to legally enforce a claim on the equipment against third parties (like other creditors or a trustee in bankruptcy), two steps must be completed:

• Attachment (Creation of the Security Interest):This is the contractual step where the interest attaches to the equipment. Attachment occurs when:

  • Value is given by the Secured Party (the loan is advanced).

  • The Debtor has rights in the collateral (the equipment).

  • The Debtor signs a written Security Agreement containing a proper description of the collateral

•  Perfection (Public Notice and Priority): This is the essential step of providing public notice of the security interest. In Canada, perfection is achieved almost exclusively through the registration of a Financing Statement on the relevant provincial or territorial Personal Property Registry (PPR).

  • Proper registration establishes the Secured Party's priority, generally following the rule of "first to register or perfect."

  • In the case of equipment that has a serial number (like vehicles or large machinery), the serial number must be correctly included in the registration. Failure to include or correctly state the serial number on serial-numbered equipment risks losing the priority against a subsequent purchaser.

Yet, due to the provincial nature of the PPSA, determining the correct jurisdiction for perfection is paramount. For equipment that is mobile (like commercial transport fleets), perfection is typically governed by the laws of the jurisdiction where the debtor's chief executive office is located. For fixed equipment, it is generally the jurisdiction where the equipment is physically located.

The inherent complexity and high-stakes consequences of non-compliance make the expertise of experienced legal counsel absolutely essential for any equipment leasing business. Relying solely on standard lease forms or internal processes without rigorous legal oversight is a recipe for catastrophic financial loss.

• Perfecting Security and Ensuring Priority: A non-compliant or defective PPSA registration is equivalent to having no security at all. Counsel's role is to ensure that the security interest is perfected - meaning the interest is made effective against third parties. This involves:

  • Correctly determining the governing jurisdiction and the proper debtor name for registration (errors in which can invalidate the filing).

  • Correctly classifying and describing the collateral (e.g., equipment vs. inventory).

  • Understanding the distinction between a "true lease" and a "security lease" and knowing that even a true lease for more than a year must be registered for priority purposes. Failure to perfect results in the lessor's security interest being subordinate to the claims of virtually all other perfected creditors, meaning the leased equipment - the core asset of the business - could be seized and sold by other parties upon the lessee's default or insolvency.

• Navigating Multijurisdictional and Conflict of Laws Issues: Canadian commercial equipment lessors often deal with lessees and equipment located in multiple provinces. Each province has its own PPSA, and while they are largely similar, variations exist. Legal counsel is critical for navigating the conflict of laws rules to determine where and how to properly register to maintain perfection when equipment is moved across provincial borders.

• Enforcement and Insolvency: In the event of a lessee default or, more critically, bankruptcy, the PPSA dictates the lessor's rights and remedies. Counsel ensures that enforcement is carried out in strict compliance with the PPSA's procedures, thereby preserving the lessor's claim to the collateral and minimizing legal liability. Without this expertise, the lessor risks having its claim invalidated or facing litigation for improper seizure.

In summary, for a commercial equipment leasing business, PPSA compliance is not merely a legal formality; it is the cornerstone of asset protection and financial security. Experienced legal counsel acts as an indispensable risk manager, translating the statutory language of the PPSA into enforceable, profitable commercial agreements, and ultimately safeguarding the company’s portfolio from creditor claims and bankruptcy loss. [this is particularly important for US companies leasing equipment to Alberta, Canada and Ontario, Canada]

For knowledgeable and experienced legal representation in negotiating, reviewing and drafting commercial equipment lease agreements, and protecting your business’ legal rights thereunder, contact equipment lease lawyer Christopher Neufeld at 403-400-4092 [Alberta], 905-616-8864 [Ontario] or Chris@NeufeldLegal.com.