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In the Spotlight: The Right of a Landlord to Share in Consideration Received in Connection with Transferring Leased Property
In a commercial lease, it is common for a landlord to include a provision giving the landlord the right to obtain all or a portion of the rent or other consideration received by a tenant, pursuant to a sublease or assignment of the leased property. Because the landlord typically has a superior interest in the property, the landlord usually expects to benefit from increases in market rental rates or appreciating property values.
This article examines three common provisions used by landlords to obtain all or a portion of the excess rents or other consideration received by a tenant pursuant to a sublease or assignment: an express allocation of excess rents, a right to increase rent on an assignment or subletting, and a recapture clause. Additionally, this article discusses issues associated with the enforcement of these provisions and the landlord's ability to receive excess rent where the lease is silent on the issue.
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