[RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?

Fri May 10 05:26:35 PDT 2013

As with the franchisors we have the same issue with Landlord Lien Waivers or Subordinations.

We take the position in the documents that we will not "give" the franchisor or financing or equipment company the right to come onto the leased property while tenant remains in possession, but we will not "object" to any rights given by tenant so long as and then we fill in our list of protections.

I have never seen it tested but it has always been my approach.

The language changes once tenant is no longer in possession.

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From: landten-bounces at lists.flabarrpptl.org [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Eric Jacobs
Sent: Thursday, May 09, 2013 9:12 AM
To: RPPTL Landlord Tenant Committee
Subject: Re: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?

I don't believe that the Seller can re-enter without a court order and would not encourage them to do so.  I would seek preliminary injunctive relief if they are serious about getting back in their in a hurry though they'll like have to post a bond.  In such case though I think it would be more in the nature of taking possession sort of "on account of" Buyer and not resuming occupancy as Tenant per se.

Also, once the lease is assigned unless there is something in the lease that allows the Tenant to resume its occupancy, I'm not sure what basis the Tenant would have to resume occupancy.

Sounds like an interesting mess.  Interested in the thoughts of others

Eric Jacobs
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From: landten-bounces at lists.flabarrpptl.org<mailto:landten-bounces at lists.flabarrpptl.org> [mailto:landten-bounces at lists.flabarrpptl.org] On Behalf Of Anthony J. Horky
Sent: Wednesday, May 08, 2013 4:48 PM
To: 'RPPTL Landlord Tenant Committee'
Subject: [RPPTL LandTen] Assignment of Lease - Can the Assignor evict the Assignee?

Hello Members: I have a unique fact pattern and before I file suit, I'd be interested to hear other member's opinion:

Facts:

Tenant operates a retail establishment.  Tenant sells its "business" and takes back a promissory note and security agreement.  Tenant assigns its rights in the lease to the purchaser by way of an Assignment of Lease and Collateral Assignment, which provides, inter alia, that upon default in the note or security agreement, and after 10 days written notice to cure, seller/tenant may re-enter and take possession of the collateral and operate the business through the unexpired term of the lease. Buyer defaults on promissory note and will not peaceably surrender possession. Buyer remains current on rent payments to landlord.

Issue:  Seller/tenants wants to exercise its right of re-entry and sue on the note.

Causes of action:  Foreclosure of security agreement, breach of the note, breach of personal guaranty and  Declaratory Judgment that (1) buyer is in default, (2) tenant/seller reserved right of re-entry, and (3) clerk to issue writ of possession.

Question:  Does anyone have an opinion on another type of cause of action to adjudicate seller/tenant's right of re-entry?  Tenant, as assignor, remains liable under the lease, but I see no way to evict or remove the tenant other by way of the remedy given in the Assignment by way of a declaratory judgment.

Thank you for your time.

Regards,

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Anthony J. Horky, Esquire

Anthony J. Horky, P.A.

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This message and the documents attached to it, if any, are intended only for the use of the addressee and may contain information that is attorney-client privileged or confidential, and/or may contain attorney work product.  If you are not the intended recipient, you are hereby notified that any dissemination of this communication is strictly prohibited. If you have received this communication in error, please delete all electronic copies of this message and its attachments, if any, destroy any hard copies you may have created and notify me immediately at: ahorky at horkylaw.com<mailto:ahorky at horkylaw.com>.
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