Sublease and Assignments

Question 1

Can a tenant assign or sublease?

Answer 1

Unless the lease specifically prohibits it, the tenant may assign or sublease their non-freehold possessory interest to a 3rd party

Question 2

Why does the law allow assignments and subleasing?

Answer 2

The law favors alienability and transferability

The law disfavors restraints and interprets exceptions narrowly and strictly

Question 3

What happens if there is a specific prohibition and no explicit permission and the tenant violates?

Answer 3

The assignment becomes VOIDABLE, not void.

Question 4

Can a landlord withhold consent?

Answer 4

Landlord cannot withhold consent for any reason

Question 5

Can a landlord withhold consent?

Common Law

Answer 5

Landlord cannot withhold consent to assign unreasonably (can’t collect from either T or T1) but CAN withhold consent to sublet reasonably (Can only collect unpaid rent of T1 from T)

Question 6

Assignment

Majority View

Answer 6

T assigns T1 entire interest – this is the full string of time (T1 gets entire remaining lease term, interpreted as an assignment, (NOT a sublease)

If a tenant transfers the right to possess to 3rd party for entire string of time, then it is an assignment

Question 7

Sublease

Majority View

Answer 7

If tenant transfers only part of remaining term and keeps part of the time for himself, this is a sublease