[RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

Thu Apr 14 11:50:01 PDT 2011

I do not see where an outright prohibition would be void in a commercial setting. For example, with a high end or specialty tenant, with percentage rent clause, and possibly a continuous operation clause, a landlord may well want to prevent either assignment or subletting. If bargained for, I would think a court would/should  enforce, but do not have a case to support my conclusion.

Rick

Patrick G. Emmanuel, Jr., Esq.
Board Certified Real Estate Lawyer
Emmanuel, Sheppard & Condon, P.A.
30 South Spring Street
Pensacola, FL  32502
Telephone: (850) 433-6581
Facsimile: (850) 433-6162

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor
Sent: Thursday, April 14, 2011 1:05 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

Not sure how 3rd DCA would interpret "sole and absolute discretion", since it's so willing to apply  test for good faith in an exercise of discretion.

I have previously taken George's approach, providing a definition of permissible criteria. I do think an outright prohibition, maybe in bold letters, should work, especially if the reasons for it are included, i.e., a "unique relationship" between landlord and tenant, etc.

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:       954-962-3560
Email:   Jmazor at Mazor.com<mailto:Jmazor at Mazor.com>

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of George Pincus
Sent: Thursday, April 14, 2011 1:21 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

I am wondering why would the Landlord even want to risk it?  Are you not better putting in a set of criteria (financial creditworthiness, compatible use, not in negotiations for other space in the building, the typical stuff) for what is a reasonable basis for Landlord to reject a proposed assignment?    That works.  An absolute prohibition on assignment, without a clear answer, seems a less than smart risk to take on, under these circumstances.

Is there a compelling economic or risk allocation reason for prohibiting assignment?

George A. Pincus, Esq.
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<http://www.stearnsweaver.com/>

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Thursday, April 14, 2011 12:34 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

any criteria she desires=sole and absolute discretion, at least in my mind.

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:396444418 at 14042011-2063]

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor
Sent: Thursday, April 14, 2011 12:27 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: Re: [RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

David.

I wonder if "absolute or sole discretion would be sufficient to avoid the good faith requirements of Fernandez v. Vazquez, attached.

Maybe better, an outright prohibition or explicitly say that the Landlord may apply any criteria she desires.

Jeffrey R. Mazor, Esq.
J. R. Mazor & Associates, P.A.
Presidential Circle Building
4000 Hollywood Blvd.,  Suite 265-s
Hollywood, FL 33021
Phone: 954-962-3500
Fax:       954-962-3560
Email:   Jmazor at Mazor.com<mailto:Jmazor at Mazor.com>

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of David Weisman
Sent: Thursday, April 14, 2011 12:11 PM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

If the parties freely contract for the Landlord to have absolute or sole discretion, or if there is a blanket prohibition on assignment which the Tenant consents to at the outset of the Lease, there is no way for a Tenant to complain about what it agreed to.

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:396444418 at 14042011-2063]

From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Jeffrey Mazor
Sent: Thursday, April 14, 2011 11:50 AM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Outright prohibition against commercial lease assignment or subletting

HI:

I am quite familiar with the law that applies and the requirements for good faith dealing when a commercial lease allows for assignment, but only with:

a.        the landlord's consent , or

b.       The landlord's consent, which shall not be unreasonably withheld.

I believe that a lease can prohibit assignment as well, but does anyone have a source for that proposition?

Jeffrey R. Mazor, Esq.

J. R. Mazor & Associates, P.A.

Presidential Circle Building

4000 Hollywood Blvd.,  Suite 265-s

Hollywood, FL 33021

Phone: 954-962-3500

Fax:       954-962-3560

Email:   JMazor at Mazor.com

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