In the Spotlight: Request in Advance Master Landlord's Consent to Sublease

In many instances a prospective sublandlord requires the consent of its master landlord in order to enter into a sublease. Virtually all well-crafted subleases are expressly contingent upon the receipt by the parties of a written consent by the master landlord to the sublease. As the amount of sublease space on the market has increased, master landlords have moved away from a simple consent to a lengthy, comprehensive (and, in some instances, overreaching) form of consent. In reviewing such consent forms, subtenants should be particularly wary of language requiring the subtenant to attorn to the master landlord under the terms of the master lease or other provisions that require the subtenant to comply with master lease provisions that would otherwise be the responsibility of the sublandlord. The use of these more aggressive landlord consent forms frequently results in the addition of a second phase to the sublease process where the sublandlord, subtenant, and master landlord negotiate, or attempt to negotiate, the terms of the master landlord consent following the execution of the sublease. Of course, this process adds delay and uncertainty to the goal of concluding a binding deal and commencing rent payments under the sublease.

To avoid such delays, the sublandlord should request the master landlord's form of consent in advance. This allows the sublandlord and the prospective subtenant to vet the consent in advance, thereby lessening or eliminating the likelihood of wrangling over the terms of the consent following the execution of the sublease. One further step is for the parties to the sublease to attach the form of consent as an exhibit to the sublease. If a form consent is attached, the sublease should include a provision similar to the following: “Sublandlord and Subtenant agree that the Landlord's Consent form attached hereto as Exhibit X is deemed to be acceptable to Sublandlord and Subtenant and the Landlord's Consent shall be deemed acceptable to the parties if provided in a form substantially similar to that provided on said Exhibit X.” The attachment of the form consent and inclusion of an accompanying sublease provision evidencing the parties' acceptance should obviate any delay in obtaining the master landlord's consent following the execution of the sublease.

In many instances a prospective sublandlord requires the consent of its master landlord in order to enter into a sublease. Virtually all well-crafted subleases are expressly contingent upon the receipt by the parties of a written consent by the master landlord to the sublease. As the amount of sublease space on the market has increased, master landlords have moved away from a simple consent to a lengthy, comprehensive (and, in some instances, overreaching) form of consent. In reviewing such consent forms, subtenants should be particularly wary of language requiring the subtenant to attorn to the master landlord under the terms of the master lease or other provisions that require the subtenant to comply with master lease provisions that would otherwise be the responsibility of the sublandlord. The use of these more aggressive landlord consent forms frequently results in the addition of a second phase to the sublease process where the sublandlord, subtenant, and master landlord negotiate, or attempt to negotiate, the terms of the master landlord consent following the execution of the sublease. Of course, this process adds delay and uncertainty to the goal of concluding a binding deal and commencing rent payments under the sublease.

To avoid such delays, the sublandlord should request the master landlord's form of consent in advance. This allows the sublandlord and the prospective subtenant to vet the consent in advance, thereby lessening or eliminating the likelihood of wrangling over the terms of the consent following the execution of the sublease. One further step is for the parties to the sublease to attach the form of consent as an exhibit to the sublease. If a form consent is attached, the sublease should include a provision similar to the following: “Sublandlord and Subtenant agree that the Landlord's Consent form attached hereto as Exhibit X is deemed to be acceptable to Sublandlord and Subtenant and the Landlord's Consent shall be deemed acceptable to the parties if provided in a form substantially similar to that provided on said Exhibit X.” The attachment of the form consent and inclusion of an accompanying sublease provision evidencing the parties' acceptance should obviate any delay in obtaining the master landlord's consent following the execution of the sublease.