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

Tue Aug 3 14:17:54 PDT 2010

I agree with David Weisman.  I think it would be hard for a court to say that a landlord unreasonably withheld consent where to have granted consent would have put him in default under Tenant #2's Lease.

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Arthur J. Menor
Partner
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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

[cid:293111621 at 03082010-1369]

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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