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Commercial Lease Terms: More Issues to Cover
Last month we began discussion of several topics of interest to tenants and landlords as they negotiate leases for commercial space. We continue here with more items that should not be overlooked by either party to a commercial lease during its formulation.
6. Assignment and Subletting
Most leases typically include a provision limiting the right of a tenant to assign the lease or sublet the leased premises (or a portion thereof) to a third party.
Sometimes, such a lease provision deems it an assignment of the lease when the corporate entity which is the tenant is sold, in whole or in part, to a third party. At the very least, the tenant should demand that a sale of the business or a portion of the interest of the corporate entity should not be considered a lease assignment. As such, exceptions to this lease provision for related parties and the sale of the business should be included in the lease, as well as language providing that the landlord will not unreasonably withhold, delay, or condition consent to the proposed lease assignment.
On the flip side, the landlord would probably want to include language in this provision of the lease indicating that the landlord has unfettered discretion in granting or withholding such consent. Furthermore, the attorney representing the commercial landlord will want the lease to include language stating that the proposed assignee tenant must provide financial and like information to the landlord, and that the landlord has the right to reasonably deny the proposed lease assignment if the landlord does not feel comfortable with the assignee tenant.
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