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The Evolution of a Lease Provision: Sublease and Assignment
In the absence of a lease provision restricting subleasing and assignment, common law permits a tenant to freely sublease its leased premises or assign its leasehold interest in the leased premises. In order to provide for maximum landlord control over a tenant's ability to sublease or assign its leasehold interest, while at the same time balancing the need of tenants for an exit strategy, modern forms of leases contain extensive assignment and sublease provisions. This article traces the manner in which those provisions have evolved over the years.
Early assignment and sublease provisions were quite basic. Most landlords were satisfied with an outright prohibition, such as: “Tenant shall not assign this Lease or sublet all or a portion of the Premises.”
Then landlords began to acknowledge the possibility of assignment/subletting, but only with their prior written approval. So, there was grafted on to the simple prohibition the following approval requirement: “Tenant shall not assign this Lease or sublet all or a portion of the Premises without the prior written consent of Landlord.”
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