How to Create Common and Uncommon Assignment/Subletting Problems

Under common law, absent a lease restriction, tenants had been free to assign their leasehold interest to others or to sublet all or part of their leased space. That rule of law is of little consequence today because virtually all leases restrict assignment and subletting rights, often in excruciating detail. In addition, a small number of jurisdictions have reversed the rule by statute and there are certain kinds of leases, generally tied into personal services, that are not, as a default matter, freely assignable. This article deals with what can happen when those restrictions are poorly crafted or entirely absent, and the problems that arise as a consequence thereof.