[RPPTL LandTen] Assignment, Subletting and Exclusive Use Provision Question

Tue Aug 3 08:16:15 PDT 2010

Usually the use clause guards against this...

________________________________

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of David
Weisman
Sent: Tuesday, August 03, 2010 11:09 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

George:

I think that when an assignment request is made, it has to be reviewed
with regard to exclusives in place at the time just as a proposal for a
new tenant. If Landlord approved the assignment, it would violate the
exclusive and it would be unreasonable to expect a Landlord to breach
another contract in order to approve a proposed assignment.

The contrary answer would allow a competitor to circumvent the exclusive
simply by acquiring an existing lease.

David  Weisman

Board Certified Real Estate Lawyer

Greenspoon Marder, P.A.

Trade Center South, Suite 700

100 West Cypress Creek Road

Ft. Lauderdale, FL 33309

Phone 954-491-1120

Toll Free 888-491-1120

Direct Phone 954-343-6941

Direct Fax 954-343-6942

From: landten-bounces at lists.flabarrpptl.org
[mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of George
Pincus
Sent: Tuesday, August 03, 2010 10:42 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment, Subletting and Exclusive Use
Provision Question

Here are my facts:

*         Landlord enters into a lease with Tenant #1.  The
Assignment/Subletting clause says the typical "which consent shall not
be unreasonably withheld" when the Landlord is asked by the Tenant to
approve an assignment or sublease.  There are no criteria or conditions
specified as to what qualifies as Landlord being reasonable when it says
"no" to a proposed assignment or sublease.

*         Three (3) years later and Landlord is now negotiating a lease
with Tenant #2, who is asking that Landlord not lease other space in the
building to Tenant #2's competitors, which will be listed on a schedule
to the Lease.  

*         Question:  is it reasonable for Landlord to say "no" to Tenant
#1 when Tenant #1 shows up with a request to sublet to one of Tenant
#2's competitors on the list?

Obviously, the definitive answer is to go back to Tenant #1 and try and
amend Tenant #1's Lease to preemptively provide that it is not
unreasonable for Landlord to withhold consent to a proposed assignment
or sublease to one of the listed competitors, but that is not going to
happen. 

I can't find any case law on this point (but at my advanced age, I suck
at research).   Does anyone have any relevant experience with this
issue?   

I appreciate your thoughts on this issue. 

Thanks very much. 

George A. Pincus, Esq.

Shareholder

Stearns Weaver Miller Weissler

  Alhadeff & Sitterson, P.A.

New River Center, Suite 2100

200 East Las Olas Boulevard

Ft. Lauderdale, FL 33301

Telephone: 954-766-9705

Facsimile:    954-766-9719

E-mail: gpincus at stearnsweaver.com <mailto:gpincus at swmwas.com> 

www.stearnsweaver.com

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