Don't Sleep On Prohibitions on the Assignability of Leases

In the absence of any language prohibiting or otherwise limiting a tenant's ability to transfer the tenant's right in the leasehold estate, there is a presumption that a tenant should have free assignability (i.e., alienability) of the lease, based on the fundamental bundle-of-sticks theory of real property law. If the tenant is not otherwise prohibited from doing something within a lease, the general presumption is that the tenant can do that thing! For example, a straightforward provision that absolutely prohibits a tenant from assigning its interest in a lease does precisely nothing to prohibit the same tenant from subletting the entire space to a third-party subtenant.

Accordingly, commercial landlords typically will place safeguards on the tenant's assignability of a lease by absolutely prohibiting the tenant from assigning, subletting, mortgaging, encumbering, pledging, transferring, whether voluntarily or involuntarily or "by operation of law" the tenant's interest in the lease and the leased premises (or subjecting the prohibition to landlord's consent, sometimes not to be unreasonably withheld, delayed or conditioned).