Add Consent Requirement to Both Assignment and Sublet Language
If you want to make sure that a tenant can neither assign nor sublet without your prior written consent, add the consent requirement to both the lease's assignment language and the lease's sublet language—not one or the other, advises Toronto attorney Harvey M. Haber. If your lease requires the tenant to get your prior written consent only to assign the lease, but doesn't mention a consent requirement for sublets, the tenant will be free to sublet without your consent, warns Haber. Or if you add a consent requirement to the sublet language, but not to the assignment language, the tenant can assign the lease without your consent, he adds.
Some owners don't realize that assignments and sublets, though typically discussed in the same lease clause, are separate concepts, Haber points out. In an assignment, the tenant assigns, or transfers, its entire interest in both the lease and the space to an assignee. But in a sublet, the tenant transfers all or a part of its interest in the space to a subtenant for less than the remainder of the lease term. So restricting one doesn't automatically restrict the other, Haber explains.
Harvey M. Haber, Q.C., LSM: Partner, Goldman Sloan Nash & Haber LLP, 250 Dundas St. W., Ste. 603, Toronto, ON M5T 2Z5; (416) 597-3392, firstname.lastname@example.org.