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Landlords' Withholding of Consent Under a Lease

By Melissa A. Semidey and Donna Hoelscher Suchan

Real estate practitioners are accustomed to seeing lease terms and conditions that are subject to a reasonableness standard. In fact, one of the most common revisions to real estate contracts and leases during negotiations is the repeated insertion of the word “reasonable” in front of the parties' rights and remedies. Yet we rarely examine the substantive effect of that word.

This article summarizes the results of a 50-state survey of case law addressing this issue. (Only 38 states and the District of Columbia have opined on this issue.) More specifically, these cases examine the authority for withholding of consent when a lease is silent as to the landlord's right to do so, as well as the criteria used to determine what constitutes a landlord's unreasonable withholding of consent. The courts' holdings on these issues vary significantly from state to state. While there are numerous contexts in which the reasonableness standard applies, this article focuses on cases regarding assignment and subleasing, and alterations to the leased premises, as these are the issues courts around the country have most commonly reviewed.

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