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The 'Landlord Consent To Sublease': Where Landlords And Subtenants Can Get Together
During the past two years, from Silicon Valley to Northern Virginia, a huge amount of office space has become available for sublease. Coincident with that phenomenon has been the emergence of increasingly comprehensive forms of the 'Landlord Consent to Sublease' (referred to herein as the 'Consent'). That tri-partite document ' among the landlord, the tenant/sublessor and the subtenant ' originally served merely to memorialize the landlord's consent to a sublease and perhaps to reassert the primacy of the prime lease terms over those of the sublease. Now, however, it has become a meeting ground of sorts where prime landlords and subtenants can get together and, with privity of contract, set forth their agreements with respect to a number of matters involved in the landlord/subtenant relationship.
Typically that relationship is uncomfortable at best. The tenant, the only party with whom the landlord has contracted, may well have moved on, leaving the subtenant occupying space in the landlord's building without an agreement with the landlord. This could cause problems for the landlord. For example, if the landlord negligently causes a fire that destroys the subtenant's furniture, furnishings and equipment, the landlord is generally liable to the subtenant for that damage. That is so because any mutual waiver/waiver of subrogation provisions in the prime lease, even if incorporated into the sublease by reference, are effective between the subtenant and its tenant/sublessor, not between the subtenant and the landlord.
Some of the matters treated in the Consent are addressed in the sublease (to which the landlord is not a party), but the landlord may wish to obtain the direct agreement of the subtenant concerning certain matters, eg, compliance with the landlord's rules and regulations. Other matters may be addressed in the prime lease (to which the subtenant is not a party) and, again, the landlord ' and often the subtenant ' will wish to set forth their agreement directly with each other as, for example, regarding attornment.
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