assignment vs sublease

What is Assignment of Lease and How It Differs from Subletting

The assignment of lease (and rent) is a foggy topic that is often confused with subletting. Let's clear the air once and all right now. Learn the differences between a lease assignment and sublease so you can make the right choice.

What is Assignment of Lease? - The Important Basics

Let's begin by introducing the 3 players in a lease assignment - The landlord, the original tenant (assignor) and the new tenant (assignee). The original tenant has an unexpired lease agreement with the landlord and he wants out. Since the original tenant can't just break the agreement and walk off, what he does is to get a new tenant to swap places... and take over all his rights and obligations for the remainder of the lease period. So if the original tenant signs a 1 year commercial lease and the business goes bust after 8 months, the new tenant will be assigned a 4-month commercial lease (with the same terms and conditions as the original agreement). Now here's the big catch: Even though the original tenant has handed over all his duties and obligations to the new tenant, he is not off the hook... unless the landlord agrees to release him from all liabilities. If the new tenant stirs up trouble, our dear original tenant will find himself in hot soup as well. Of course, whether the original tenant is allowed to pull this assignment trick out of his hat is a whole new matter. Knowing for sure is actually simpler than most people think: First, examine your local landlord tenant laws for any lease assignment rules. Most of the time, landlords are given the right to allow or disallow assignments but once in a while, the local law let tenants have the final say instead. If there's no mention of lease assignments in your law text, then your rental lease agreement shall dictate the terms.

Difference Between Lease Assignment and Subletting

When it comes to subletting vs assignment of lease, there's often a massive mix-up. Sometimes even real estate professional get it wrong by assuming them to be one and same thing. However if you dig deeper, you will find that the differences are not just numerous, but important as well. Let's begin by dragging the landlord into the picture. An assignment of lease launches the new tenant into a direct relationship with the landlord - The landlord collects rent straight from the new tenant and deals with the new tenant directly on all lease issues. So in this case, the original tenant gets to take back seat and doesn't have to manage the new tenant actively. On the other hand, there's no direct relationship between the landlord and new tenant (subtenant) in a sublease. Instead the original tenant plays mother goose and is responsible for collecting rent from the subtenant and making sure that he's following the lease rules. When you compare the two, a sublease is a lot more hands-on for the original tenant. No matter which path you take, you will still want a good new tenant who pays the rent on time and follows the lease rules to the agreement. For the golden rules on screening tenants and running credit checks, Click here for our guide to running tenant credit checks. When you have a lease assignment, the terms and conditions of the lease remains largely unchanged - It's almost like taking the original lease agreement and swapping the tenant's name with another. With a sublease, there's more breathing space - The original tenant can decide how much rent to charge, how long the subtenant is going to stay or even collect security deposit... as long as it stays within the boundaries drawn by the original lease agreement between the landlord and original tenant.

Should You Choose Assignment of Lease or Sublease?

You are the Landlord - A lease assignment is recommended in most cases. You will have more control over your new tenant (instead of leaving matters in the original tenant's hands and hoping that he would do a good job)... plus you still have the original tenant to cover your back in case anything goes wrong. You are the Original Tenant - Now this is a tricky one. If you want to someone to take over the entire lease and property for its remaining duration (e.g. your business goes belly-up and you no longer need the office), then help yourself to a lease assignment. If the landlord's consent is required for assignment (and he doesn't give the nod), you can always try offering him a lease assignment fee as a deal sweetener. However, if you are looking for someone to share the place (and rent)... or perhaps you need someone to cover the rent while you are overseas for a few short months, then a sublease would be ideal. You are the New Tenant - An assignment of lease works better for you most of the time. You won't be at the mercy of the original tenant (for example if he screws up and the landlord terminates the original lease agreement, your sublease might also go up in flames). But if you only want to rent part of the property... or don't want to tie yourself down for the remaining lease duration, then you are better off sticking to a sublease. Now that we have covered the topic of assignment vs sublease, go ahead and take your pick - Click here for an assignment of lease form or Click here for a sublet agreement instead.

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Assignment vs. Sublease: Difference and Comparison

Difference Between Assignment and Sublease

Assignment vs. Sublease Comparison Chart

Connection to landlord, typical permissions, assignment vs. sublease definitions, ◉ assignment.

Assignment vs. Sublease Frequently Asked Questions

Who typically initiates an assignment, can a sublease extend beyond the original lease's term, is it easier to reverse an assignment or a sublease, can a subleased space be further subleased, who does the landlord hold accountable in a sublease scenario, is rent typically the same in a sublease, can an assignment be partial, what happens to the original lease during an assignment, are there risks to subleasing, do all leases allow for assignments and subleases.

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Assignment, Subleasing, And Why It's Important To Negotiate The Right To Do Both

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In the market for commercial space? Chances are you’re focusing your efforts on sourcing a property that suits your current business requirements.

However, in today’s ever-changing economy/business climate, companies often need to upsize or downsize at short notice.

As a tenant, where does that leave you when locked into a long-term commercial lease?

Keep it flexible

It’s hard to anticipate whether you’ll be faced with breaking a lease before it happens. So, it’s important to keep your contract flexible by negotiating a subleasing and assignment clause into your agreement. This means you’ll be able to transfer all or part of your space to another tenant down the track if the situation calls for it.

What’s the difference between an assignment and a sublease?

Lease assignments and subleases are often viewed in a similar light. This is because both bank on a third party taking over a commercial lease. But, there are some important differences to consider:

Lease assignment

A lease assignment is when an entire property/space, including the existing tenant’s rights and interest in the commercial lease, is transferred over to a new party.

When it comes to leasing assignments, the new tenant takes on the rights and responsibilities of the assigning tenant. That means the original tenant is not liable anymore if the new tenant breaches the lease.

Lease assignment is best undertaken when:

• The whole lease can be disposed of
• The current lease has favourable terms that would be accepted by another tenant

Major hurdles when it comes to lease assignment:

• Requires upfront capital incentive
• Requires landlord consent

A sublease, on the other hand, is a separate contract between the original tenant and a subtenant. Unlike an assignment, a sublease only turns over part of a property. That means that the original tenant shares the rights and responsibilities to the premises.

A sublease may be preferable for tenants who wish to lease out part of their property to another company for the remainder of the lease term. It may also suit if a tenant needs to rent out the entire property for a period within their fixed-term lease.

In this case, the sublessee treats the sublessor as their landlord. In turn, the sublessor assumes liability on behalf of the sublessee.

Subleasing is best undertaken when:

• You're looking for a partial or temporary cost saving initiative
• Your landlord does not consent to or permit assignment
• Your current lease has. onerous clauses that another tenant wouldn’t agree to

Major hurdles when it comes to subleasing:

• Inherent security risks
• You’ll likely recuperate less than 50%-70% of the rent

You can learn more about some of the benefits of commercial subleasing here and what commercial sublessors should expect from subleasing here .

The importance of a lease assignment and sublease clause

The right to assign or sublet a premises comes down to the language used in the commercial leasing agreement.

If there is no prohibiting or limiting clause, a tenant does not need the landlord’s permission to do so. However, if the contract contains such provisions, the existing tenant needs to get the landlord’s consent. This can prove quite costly for the tenant, who may have to continue to pay rent even if they no longer occupy the premises.

Other options for breaking a commercial lease

The odds usually aren’t stacked in the tenant’s favour when it comes to breaking a commercial lease . However, if you used a tenant representation specialist before signing your contract, you should have received the right advice to protect yourself.

Break clause

Well negotiated leases may have a ‘break clause’, however, most landlords are reluctant to include one of these. A break clause basically lays out the circumstances and the manner in which a tenant can break a commercial lease early.

As with any contract, it’s up to the two parties to negotiate terms. One option may be to allow early termination of a lease if a new tenant with similar financial security takes over. This is similar to an assignment. However, the new tenant would take over the full liability of the remaining lease.

Pay out the commercial lease term

Not a desirable option for most tenants, however, there may be situations where it is the only choice. For example, if you were closing your business before the expiry of your lease term and there was no way to arrange an assignment or sublease, paying out the remainder of your term may be the only course of action.

Most people would consider this a worst-case scenario. This, again, highlights the importance of seeking the help of a tenant representation specialist prior to signing any commercial lease .

Commercial tenants should try to mitigate their risks upfront. Before signing a lease, or even at the heads of agreement stage , we suggest negotiating a clause which requires a landlord to act reasonably in the case of lease assignment or sublease.

Work with a commercial tenant advocate

Negotiating commercial lease terms can be tricky (even daunting at times). This is because most businesses only have to do it once every 5-10 years. Being able to negotiate provisions that would not otherwise be included may also prove challenging because landlords prefer not to limit their options.

Luckily, an experienced tenant representative will guide you through the lease negotiation process so your needs are met every step of the way. So, the next time you face a lease negotiation, let Tenant CS balance the playing field.

Considering breaking your lease? Whether you're exploring options like subleasing, assigning, or surrendering, a detailed property strategy is crucial.

Consulting with a tenant representation specialist is your best move, especially if there's less than a year remaining on your lease. At Tenant CS, we exclusively represent tenants, not landlords. Whether you need assistance with subleasing, exiting your lease, finding and negotiating a new lease, or undertaking a mid-lease rent review, appointing us can potentially save you hundreds of thousands of dollars over your lease term while protecting your interests.

Book a call with us today to discover how we can help you effectively negotiate your next lease or exit your current lease early !

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Assignment vs. Sublease in Commercial Tenancies

Navigating the complex landscape of commercial tenancies becomes even more intricate when terms like "assignment" and "sublease" emerge. while these terms may sometimes be used interchangeably by those less acquainted with property jargon, they embody distinct concepts with specific legal implications. grasping the differences between them is vital for both tenants and landlords to facilitate seamless transitions and evade potential pitfalls., share post:.

Introduction

Navigating the complex landscape of commercial tenancies becomes even more intricate when terms like “assignment” and “sublease” emerge. While these terms may sometimes be used interchangeably by those less acquainted with property jargon, they embody distinct concepts with specific legal implications. Grasping the differences between them is vital for both tenants and landlords to facilitate seamless transitions and evade potential pitfalls.

Assignment vs. Sublease: The Fundamental Differences

• Assignment of Lease : Delving into an assignment, a tenant hands over their entire leasehold interest to a third entity, referred to as the assignee. This transition implies that the assignee adopts the tenant’s position, inheriting all rights and obligations linked to the lease for its remaining tenure. However, depending on the lease and assignment agreement terms, the original tenant might still bear some responsibility.
• Sublease : Contrarily, subleasing presents a more detailed arrangement. In this scenario, a tenant holds onto their leasehold interest but permits a third party, the subtenant, to utilize a part of their space for a period shorter than the remaining lease term. If a tenant endeavours to sublease for the entire leftover term, this move could, under common law principles, be perceived as an assignment. Yet, specific regional legislations, such as in Ontario, might contain exceptions where a few subleases aren’t deemed assignments.

From a Tenant’s Perspective: Assignment and Sublease Explored

• Seeking Flexibility : At the core of both assignments and subleases for tenants lies adaptability. With evolving business requirements, tenants may find themselves in situations where they need to expand, reduce, or reorient their operational setups. Both these mechanisms provide avenues to adapt without violating lease agreements.
• Concerns Over Liability : Even though assignments facilitate the transfer of leasehold interest, tenants might find themselves accountable for any contractual breaches or defaults, unless the landlord expressly releases them. In the realm of subleases, the original tenant continues to be the main party accountable for the lease’s commitments, even in instances where the subtenant defaults.

From a Landlord’s Perspective: Assignment and Sublease Dynamics

• Upholding Control : For landlords, retaining control reigns supreme. Ensuring and verifying the occupants of their property is of utmost importance. Welcoming new entities through assignments or subleases can sometimes raise eyebrows.
• Direct Liaisons : In assignments, landlords may find themselves in a direct contractual relationship with the new tenant (assignee), making them directly answerable for lease obligations. When it comes to subleases, the original tenant stands as the primary intermediary, bridging the landlord and the subtenant.

Benefits and Considerations for Tenants: Assignments and Subleases

Assignments :

• A viable exit from lease commitments no longer feasible.
• Redistribution of legal risks in diversified manners, ensuring shared accountability for lease commitments.
• Typically, a straightforward process to conclude.
• Potential for recovering costs associated with the leased premises.
• Unmediated engagements between the assignee and landlord.
• Lingering accountability for lease commitments in the absence of a landlord’s release.
• Potential negotiation challenges concerning cost recovery.
• Relinquishing rights to the premises post-assignment.
• Ambiguity regarding the transfer of certain leasehold covenants.

Subleases :

• Often transferred in its prevailing condition, curbing additional expenses.
• Swift negotiation and formalization processes.
• Enhanced flexibility concerning space allocation and tenure.
• Pricing often leans below market benchmarks.
• Necessity to interface directly with the landlord on the subtenant’s behalf.
• Persisting obligation for all tenant commitments under the lease.
• Obligation to address subtenant discrepancies and pursue reimbursements.
• Restricted to the rights granted to the primary tenant.
• Absence of a direct contract with the landlord.
• Sublease’s existence contingent on the primary lease’s tenure.

Wrapping Up

In the vast domain of commercial tenancies, both assignments and subleases hold pivotal roles, emerging as critical instruments enabling tenants and landlords to adeptly maneuver the dynamic commercial environment. Their distinctions are profound, making it essential to comprehend them to avert legal intricacies.

As a concluding note, whether you’re a tenant aiming for adaptability or a landlord focused on retaining control, roping in real estate and legal mavens is of paramount importance. These seasoned professionals can provide insights tailored to individual scenarios, guaranteeing informed decision-making by all stakeholders.

Considering an assignment or sublease for your commercial space? Ensure you're making informed decisions.

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Assignment vs Subletting - What is the difference?

Assignment vs subletting – what are the differences.

Assigning a residential lease agreement and subletting are two distinct ways of transferring tenancy rights in a rental property, each involving different legal and practical implications. Here’s a breakdown of their differences:

Assignment of a Residential Lease Agreement:

Definition:

Transfer of Responsibility: Assigning a lease involves transfer of the original tenant’s entire interest in the lease to a new tenant. The original tenant ceases to have any rights or obligations related to the property.

Consent from Landlord: Typically requires the landlord's explicit permission or consent. The landlord is often involved in vetting and approving the new tenant.

Replacement Tenant: The original tenant may find a replacement (assignee) who takes over the lease entirely. The landlord may also market for a new tenant and vet any potential replacement tenants.

Legal Responsibility:

Liability: The assignor (original tenant) is usually released from all liabilities and obligations once the lease is assigned to the new tenant.  This may key off of the new tenant taking possession of the rental unit.

Direct Relationship with Landlord: The new tenant (assignee) becomes directly responsible to the landlord for rent payments, property maintenance, and adherence to lease terms by effectively “stepping into the shoes” of the departing tenant.

Implications:

End of Original Tenancy: For the assignor, once the lease is assigned, their association with the property generally ends. They may not have recourse if the assignee defaults on payments or breaches the lease.

Subletting of a Residential Lease Agreement:

Partial Transfer: Subletting occurs when the original tenant rents out all or part of the property to a subtenant while retaining some rights and responsibilities under the original lease.

Consent from Landlord: Usually requires the landlord's permission, as outlined in the lease agreement. Some leases explicitly prohibit subletting.

Ongoing Relationship with Landlord: The original tenant (sublessor) maintains responsibility to the landlord for lease obligations.

Obligations: The sublessor remains responsible for rent payments and adherence to lease terms, acting as an intermediary between the landlord and subtenant.

Relationship with Subtenant: The sublessee has a legal relationship with the sublessor rather than the landlord. The sublessee must adhere to terms agreed upon in the sublease.

Ongoing Responsibility: The original tenant (sublessor) remains liable to the landlord for the property and its condition. They're responsible for any damages or lease violations caused by the sublessee.

Continued Tenancy: The original tenant maintains an ongoing relationship with the property and the landlord.

How Much Would Your Home Rent For?

Key Differences: 

• Transfer of Responsibility:  Assigning a lease completely transfers the tenant's interest to a new tenant, while subletting involves the original tenant retaining some rights and responsibilities.
• Direct Relationship : In assignment, the new tenant has a direct relationship with the landlord, whereas in subletting, the original tenant maintains this relationship. 
• Liability and Obligations:  Assigning a lease typically releases the original tenant from obligations, while subletting keeps them responsible for the property.

Both assignment and subletting can offer flexibility to tenants but come with distinct legal and practical implications that tenants and landlords should carefully consider before proceeding. Understanding these differences helps individuals choose the appropriate option based on their circumstances and lease agreement terms.

In most cases, assignment is the best course as it avoids the main pitfall of subletting, namely that the subletting tenant has no direct relationship or responsibility to the landlord/owner of the rental unit.  For that reason, professional property managers normally recommend termination of the original lease and negotiation of a new lease with the replacement tenant.  The outgoing tenant will normally absorb some of the costs associated with securing a replacement and the property manager makes sure the turnover is handled property.  Having experience when these issues arise is important to protect the landlord’s interests.  If you need management of an investment property, call one of our managers today to learn why so many landlords believe TREG is the RIGHT CHOICE for property management.

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Subleasing and Assignment Provisions in Commercial Leases

• June 17, 2020

Before the COVID-19 pandemic, many business owners paid little attention to subleasing and assignment provisions when negotiating commercial leases . It was common to focus on rent, maintenance, taxes, and insurance, which affect a tenant’s bottom line, and options to renew the lease if the business thrives. Recently, however, one of the top concerns of commercial tenants is flexibility in case they no longer need to use a portion, or all, of the leased space. In this context, subleasing and assignment provisions are key deal terms.

The Difference Between Subleasing and Assignment

A sublease does not alter the relationship between the landlord and the tenant, who remains liable for all of the tenant’s obligations under the lease. However, the tenant enters into a subordinate lease (the sublease) with a subtenant regarding a portion, or all, of the leased space. After a sublease is signed, the landlord interacts with the tenant, and the tenant interacts with the subtenant.

An assignment alters the relationship between the landlord and the tenant by assigning the tenant’s rights and obligations from the first tenant (the assignor) to the second tenant (the assignee). The assignee steps into the shoes of the assignor, and has a direct contractual relationship with the landlord. After an assignment of the lease, the landlord interacts directly with the assignee.

Important Deal Points Regarding Subleasing and Assignment

Leases may include many provisions regarding subleasing and assignment. Some of the most common issues include the following:

• In what circumstances is landlord consent required? Leases typically require the landlord’s consent for any sublease or assignment. However, some leases have different provisions for special circumstances, such as subleasing or assignment to a related entity, or assignment of the lease in connection with the sale of the tenant’s business.
• What is the standard for landlord consent? Provisions that require the landlord’s consent may be followed by a standard such as “in the landlord’s sole discretion,” or “which may not be unreasonably withheld.” Obviously, the second standard is more favorable to the tenant. However, as a practical matter, if a dispute arises regarding whether a landlord’s denial was reasonable or unreasonable, arbitration or litigation would be expensive, the outcome would be uncertain, and the prospective subtenant or assignee may be unwilling to wait to see how the dispute is resolved.
• What information must be provided regarding the proposed subtenant or assignee? Many leases require confidential financial information regarding the proposed subtenant or assignee. The proposed subtenant or assignee may be more comfortable providing information if the lease contains confidentiality and non-disclosure requirements to restrict the landlord’s use of the information. An argument can be made that less information should be required regarding a proposed subtenant than a proposed assignee, because the landlord will not enter into a direct contractual relationship with the subtenant and the tenant will remain liable under the lease.
• What are the landlord’s alternatives? A tenant might assume that if the tenant requests consent to a sublease or assignment, the landlord’s alternatives will be limited to granting or withholding consent. However, many leases give the landlord a third alternative, to cancel the lease if the tenant requests a sublease or an assignment. This is known as a right of recapture.
• When is the landlord’s response due? Some leases do not set a deadline for the landlord’s response to a request for consent to a sublease or assignment. A delayed response would prevent the tenant from moving forward until the response is received. A delayed response also may result in a lost opportunity, if the proposed subtenant or assignee is under time constraints.
• What is the effect if the landlord fails to provide a timely response? A lease may provide that if the landlord fails to respond to a request for consent within a specified period of time, then consent is deemed granted, or a lease may provide that in such circumstances, consent is deemed denied. The first alternative is more favorable for a tenant, but the prospective subtenant or assignee might not be willing to rely on a “deemed consent” provision and may require actual consent before moving forward.
• What are the landlord’s remedies if a sublease or assignment is made without requesting consent? Generally, if a tenant subleases or assigns a lease without obtaining required consent from the landlord, then the tenant is in default and the landlord can exercise all remedies under the lease. The lease also may provide that a sublease or assignment without the landlord’s consent is invalid and unenforceable.
• Will the assignor be released from liability for the tenant’s obligations after an assignment? It may seem like common sense that if a lease is assigned with the landlord’s consent, then the original tenant (assignor) will no longer be responsible for the tenant’s obligations under the lease. However, a lease may provide that the assignor will remain liable under the lease after an assignment. Similarly, the landlord’s written consent may state that both the assignor and the assignee will be responsible for the tenant’s obligations after the lease is assigned. In order to be released, the assignor should obtain a written agreement from the landlord stating that after an assignment, the assignor will no longer be responsible for the tenant’s obligations under the lease.
• Will a guarantor be released from liability for the tenant’s obligations after an assignment? Many landlords require a personal guaranty from an individual, or a corporate guaranty from a related entity, to ensure payment of the tenant’s obligations under a commercial lease. Guarantees typically provide that they will remain in effect even if the lease is assigned. However, the tenant may be able to negotiate for the termination of the guarantee in the event that the lease is assigned.  In some cases, the landlord may require a substitute guarantor.
• What is the effect of subleasing on the obligations of the tenant and the guarantor? A sublease does not affect the tenant’s obligations to the landlord under the lease, or the guarantor’s obligations to the landlord under the guaranty.

If a business owner is considering entering into a new lease, it is important to carefully review the subleasing and assignment provisions and negotiate any necessary changes before signing the lease. If a tenant desires to sublease or assign an existing lease, it is important to review the applicable requirements and restrictions before taking any action. An experienced real estate attorney can assist the tenant by spotting issues, explaining alternatives, and negotiating with the landlord to help the tenant accomplish its business objectives.

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Michael D. Klemm

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What is the Difference Between an Assignment and a Sublease?

by Pam Pester | Sep 17, 2019

Commercial real estate clients frequently ask how an assignment of a lease differs from a sublease.  The difference is primarily a legal one, although each achieves a similar practical result.

Assignment .  An assignment of a real estate lease is a complete transfer of the right to be the tenant under the lease.  The third-party assignee becomes the “tenant” under the lease, taking over all of the leased premises, and is substituted for the old tenant. The new commerial real estate tenant pays the rent required under the lease directly to the landlord and is treated as the tenant under the lease for all purposes.  However, the catch is that the assignor tenant, unless released from liability by the landlord, remains liable for the obligations under the lease if the new tenant defaults. The old tenant can be sued by the landlord for back rent and other obligations imposed by the lease if the new tenant fails to pay or perform as required by the lease.  Given that a commercial real estate tenant who assigns a lease remains liable for the default of the new tenant, tenants should try to negotiate an automatic release provision.  Unfortunately, many landlords are unwilling to make this concession. An alternative strategy is to ask the landlord for a release if the proposed new tenant is of similar financial strength and creditworthiness.

Sublease. A sublease is a new lease agreement between the real estate tenant as sublessor and a third party as sublessee for all or a portion of the leased premises. The original commercial real estate lease between the tenant and the landlord remains in place, unaffected by the sublease. This means that the tenant remains liable for monthly rent under the original lease, while collecting rent from the subtenant under the sublease, which may be more, less or the same as the rent due under the main lease.

A sublease can be for less than all of the leased premises, while an assignment that transfers the entire lease must be for all of the premises. A sublease is a more involved transaction, as it requires a full sublease document between the commercial tenant as sublessor and the sublessee.

Reasonable Consent .  The landlord must be reasonable in consenting to the proposed assignment or sublease. Under Florida law a landlord cannot be unreasonable or arbitrary in withholding consent to an assignment or sublease. Nonetheless, it is still better to state in the text of the lease that the landlord will be reasonable.

In drafting an assignment or sublease clause, the tenant’s goal is flexibility. Being able to assign or sublet excess space with minimal interference from the landlord and minimal liability in the event the new tenant defaults can be a tremendous benefit to the tenant as the business climate changes from year to year.

When you need assistance with your commercial  lease in Tampa, FL and surrounding areas contact Pam Pester, Owner and President of Mobiliti CRE.  Mobiliti CRE is an independently owned commercial real estate company specializing in exclusive tenant and buyer representation.

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Apr 07, 2021

The differences between assignment and sublease.

By Don Catalano

An assignment is the transfer of the commercial tenant’s entire responsibilities in a lease. When a corporate tenant assigns its lease, the assignee takes over the tenant’s responsibilities under the lease and communicates directly with the landlord.

When a tenant decides to assign a lease, all his rights and responsibilities in the original lease agreement are released to the third-party assignee. Hence, the original tenant (the "assignor") will have to leave the unit and allow the new tenant to take over all of the leased building.

It is important to check the clauses in the original lease agreement before committing an assignment arrangement. In some leases, the original tenant will remain responsible for the terms of the lease, especially if the new tenant defaults on the lease agreement or causes damage to the property. You may want to check your lease agreement for the option to pursue a permanent assignment so you won't be responsible for expenses or damages.

When a corporate tenant subleases an office , the tenant is transferring all or a portion of the premises for less than the entire term of the lease. Subletting is when a corporate tenant gives another tenant the right to occupy a portion of the entire rental unit for a specific period.

Corporate tenants often sublease when market rents have fallen and parties needing space typically sublease to get space already built-out at a much lower rate than they could as a direct tenant.

Do Both Options Need a Landlord’s Consent?

Both subletting and assigning a commercial lease require the permission of the landlord or a representing agent; this is often expressly indicated in the lease agreement itself. Although most state laws prohibit landlords from withholding consent unreasonably. If the landlord objects to the sublet or assignment, then they must do so on reasonable grounds.

In the case of assignment, a vetting procedure which usually includes credit checks may be completed before formalizing the arrangement with the associated documentation.

Is Subletting or Assignment Right For My Company?

Whether to sublet your commercial property or assign a commercial lease depends entirely on your business situation. By subletting unused space, tenants can recover vital running costs and even improve the viability of their own business. Also, the original tenant remains the tenant and is responsible for all clauses in the original lease.

Assigning your commercial lease to a third party is a good option if you want to terminate your tenancy before the end of your agreement and vacate the premises completely. This is often a good idea if you are planning to sell or relocate your business . With an assignment, you will be absolved of all responsibilities as the original tenant from the date of assignment.

Here are a few other articles to check out:

8 working from home tips you should know, 4 site selection tips when looking for office space, 5 tips when moving your office from big cities to the suburbs, subscribe for more great cre tips hbspt.cta._relativeurls=true;hbspt.cta.load(121314, 'cd3ad71f-75e1-4533-9c5a-8e82767e7aba', {"usenewloader":"true","region":"na1"});.

Don Catalano

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• Sublease vs. Assignment: Understanding Your Liabilities
• Civil Disputes

Legally reviewed by: King Law July 30, 2024

In today’s real estate market, rent payments may be extremely difficult to make. Sometimes we have to take part-time jobs in another city, leave the college apartment for the summer, or any circumstance where we have to pay double rent and need help with the finances. This is where most people think about a sublease. Subleasing involves the tenant of the property leasing their property or a portion of their property for a specific amount of time. Usually, this means the tenant is planning on returning to the property. A difference between a sublease and an assignment is in an assignment, the tenant is assigning the rest of the lease to the new tenant for the entire duration of the lease. When thinking about a sublease or an assignment it is important to think about the liability. 

In general, the goal of a sublease is for the renter to make payments, so you do not have to. This saves tenants money and gives the new renter a place to stay for a short period. But, there are some risks. The landlord-tenant responsibility does not change in a sublease. If the new renter does not make the rent payments, the original tenant is the one liable. In a sublease, the tenant is always liable under the privity of contract and privity of estate. Now this does not mean the tenant cannot seek payment from the renter and the renter can do whatever they want. The tenant can seek action against the person renting, but the tenant is the one liable to the landlord not the renter in a sublease. It is important to remember when planning a subleasing agreement that if you are the tenant, you are still liable to the landlord. The assignment is different.

In an assignment, the renter is now liable to the landlord. The renter in an assignment is now the new tenant and is liable under the privity of the estate because they are the tenant in possession of the property since they assumed the remainder of the lease. The original tenant is not returning in this circumstance. The original tenant is still liable, however. The original tenant will still be liable under the privity of the contract. In this circumstance, both the tenant and new tenant are held liable by the landlord, which is why an assignment is different than a sublease. 

When thinking about getting help with your payments or finding a short-term place to live, it is important to think about the liability of a sublease or assignment. King Law Offices is a full-service law firm with an outstanding team of professionals who work diligently, creatively, and compassionately on behalf of our clients each day. If you have a current conflict with your title or your deed, contact King Law at 888-748-KING for a consultation. We have offices located across western North Carolina and upstate South Carolina. We are here to serve you and to guide you as we navigate this journey together.

Legally reviewed by: King Law Carolina Attorneys July 30, 2024

This blog post has been reviewed and verified by legal experts at King Law. Our team is dedicated to providing premium legal services with compassion, innovation, trust, and advocacy. Serving Western North Carolina and Upstate South Carolina, we offer flexible meeting options and strive to exceed client expectations with high-quality legal representation and exceptional client relationships.

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Do you know the difference between a sublease and an assignment?  We can help…

The right of possession may be transferred by the tenant to a third person either by sublease or assignment, provided the landlord gives  consent when required. The substance of the transfer, rather than its form, may well determine the parties’ liabilities to the landlord (see below). Thus, when the tenant retains some right of reentry onto the leased premises, the law deems the transfer a sublease. On the other  hand, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, the transfer is an assignment.

Landlord’s Consent Required

Texas Property Code § 91.005 provides that a tenant may not sublease or rent leased premises during the term of the lease without first obtaining the landlord’s consent. The statute has been held to apply to assignments as well as subleases.  Since the statutory prohibition of assignments or subletting is solely for the landlord’s benefit, only the landlord may bring an action for any wrong done as a result of a  sublease or  assignment made without consent. If the original tenant does assign or sublet the lease without the landlord’s consent, the landlord may refuse to accept rent and treat the lease as forfeited.

The statutory prohibition against assigning a lease without the landlord’s consent may be avoided only by a clear expression of such an intent. For example, a lease provision granting the lessee the right to assign the lease without the landlord’s consent when the tenant is mortgaging its interest will not operate as a relinquishment by the landlord of the right to consent to subsequent assignments.

A landlord traditionally has no duty to consent to the proposed assignment of a lease unless such a duty is expressly stated in the lease. However, the Texas Supreme Court’s 1997 decision to impose a duty to mitigate damages on landlords will limit the right to refuse consent in many cases. A lease to a named person and that person’s heirs has been held to amount to an express authorization of either an assignment or a sublease.

A lease may include a provision that the landlord may not unreasonably withhold consent to a sublease or assignment. In that case, the reasonableness of the landlord’s refusal to consent is determined by reference to the terms and conditions of the original lease. It is unreasonable for the landlord to condition consent on a change in the terms and conditions of the original lease based on what the landlord finds economically advantageous at the time of the attempted assignment or sublease.

The landlord’s acceptance of payments with knowledge of a sublease raises a material fact issue as to whether the landlord has waived the right to object to the sublease.

Liabilities of Parties Upon Sublease or Assignment

Even when the landlord consents to an assignment or sublease, the original tenant is not released from the obligations of the original lease. In an assignment situation, the assignee, as well as the original  tenant, is bound by the covenants of the original lease. For instance, when the landlord does not receive rent from the lessee’s  assignees, and the assignees appear to have abandoned the premises, the landlord has the  right to re-let the property. By so doing, the landlord will not abrogate the lease and may recover from the former lessee or the assignees  the amount of  the agreed rent for the entire contract period, less any sum realized from re-letting

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Assignments vs. Subleases: What are the Differences?

by Chamber | Apr 3, 2023 | Blog | 0 comments

Submitted By:

• Peter Pokorny, Commercial Agent | Long & Foster Commercial | ww w .longandfoster.com/AgentSearch/PeterPokorny-13338785
• Peter Pokorny & Bruce Rosen, Attorneys | Real Estate Counselors | www.recdc.com

A tenant who no longer needs its space may want to assign or sublet their premises.  Or a business who needs space, may consider subleasing a space, or having that tenant assign its lease to them.

Although assignments and subleases are similar, they have distinct legal consequences. Some of the key issues are set out below.  

ASSIGNMENT :

What is it?  An assignment is the transfer of the party’s entire interest in a lease. When a tenant assigns its lease, the assignee takes over the tenant’s obligations under the lease and deals directly with the landlord.

When is it typically used?  Assignments are typically used when a party is taking over the entire leased space, for the entire remaining term, and will take on the existing lease economics. One common example is when a business is sold, existing leases are assigned to the new buyer.

Advantages:

• Since the assignee pays rent directly to the landlord, the assignor is not involved in receiving and relaying money each month.
• Although it’s not common, depending upon the circumstances, an assignor may get released from all future lease obligations.

Disadvantages:

• The assignee takes over the entire leased space.  It can’t negotiate to occupy (and pay rent on) a smaller space.
• The assignee takes over any existing liability under the lease that the assigning tenant may have.  An indemnity can help with this.
• The assignee cannot negotiate the rental rate – it must pay whatever the lease charges.
• The assignor forfeits all rights to use the premises and cannot choose to return later.

What is it?  A sublease is the transfer of all or a portion of the premises for less than the entire term of the lease.  A transfer of all of a tenant’s space for a term that is 1-day less than the lease term qualifies as a sublease.

When is it typically used?  Assigning tenants often sublease when market rents have fallen (as they can’t find an assignee to pay the rate under the lease).  Parties needing space typically sublease to get space already built-out at a lower rate than they could as a direct tenant.

• The subtenant can negotiate the rental rate and other business terms with its Sublandlord.
• The subtenant may negotiate for a shorter term than a landlord would agree to for a direct tenant.
• A subtenant may enjoy the benefits of amenities like kitchens and conference rooms it shares with its Sublandlord.
• The subtenant does not have a direct relationship with the landlord. This means it cannot sue the landlord for landlord defaults under the lease (like landlord’s failure to maintain the building).
• The subtenant must get consent of both the landlord and its Sub-landlord for issues like alterations and signage.
• During the term of the sublease, if the tenant defaults under the lease, the subtenant could be evicted by the landlord (even if the subtenant is not in default under the sublease).

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What is the Difference Between Sub-letting and Assigning a Lease?

If a tenant wants to leave their premises before the vacation date specified in their lease agreement, they can assign (i.e. transfer) or sub-let the shopfront.

By assigning or sub-letting the lease to a third party, tenants can leave the property without breaking the terms of their lease or paying two sets of rent. Assignment and subletting appear similar as they both rely on a third party taking over premises. But there are some key differences between the two.

We set these out below to help tenants decide which is better suited to their needs.

When is a Sub-let Used Instead of an Assignment?

A sub-let is when an existing tenant leases out all or part of their premises to a third party. However, the original tenant is still liable under the lease. You can read more about subleasing in our article, ‘ I’m Sub-letting a Property. What Do I Need to Know? ‘

An assignment, on the other hand, is when a tenant transfers their lease to someone else. The tenant is then no longer responsible under the original lease from the assignment date. Tenants more commonly assign the property when selling the business and sublease when the business has additional space they want to lease out. Importantly, a tenant requires the consent of the landlord to assign or sublet the property.

Should I Sub-let or Assign My Lease?

The answer depends on the circumstances of the parties’ transaction. For instance, a tenant may choose to sub-let if they are simply looking to rent out additional space to recoup costs or increase profit margins but want to remain as a tenant.

If, however, a tenant wants to end the lease early and vacate their business’ premises entirely, an assignment is likely a preferable option. An assignment transfers the obligations under the original lease to the new tenant (the assignee), placing them in the shoes of the old tenant. Both parties usually enter into a transfer of lease and deed of consent to assign the lease with the landlord and each other.

Sub-letting also creates a new series of obligations for head-tenants who act, essentially, as landlords. The head-tenant will require the sub-tenant to indemnify the tenant and landlord for their use of the property. Parties will effect this by entering into a formal sub-let with the landlord’s consent.

Key Takeaways

Assigning a lease and sub-letting are two options for tenants wanting to leave the premises before their lease ends.

Sub-letting involves a tenant leasing out all or part of their premises to a third party. Under a sub-letting agreement, the rights and obligations created under the initial lease remain in force.

An assignment involves transferring the lease from one party to another. After the assignment date, a tenant’s rights and obligations no longer exist. Tenants looking to vacate their premises entirely should, where possible, assign their lease as it gives rise to fewer liabilities and duties.

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Subletting and Assignment of Lease: What is the Difference?

Have you considered subletting your space? There are several ways to get rid of some or all of your space you lease that you don’t need. You can have language is your lease that simply ask to give up some space. You may elect to turn part of the space back to the landlord if your lease has a clause in enabling you to contract your space or you may have the option to terminate the lease. Today I want to talk about your option to sublet and/or assign your lease. I’ll explain the difference between Subletting and Assigning your lease you’ll what to know the difference and what rights under your lease you have to exercise either option. For lease negotiation purposes, there is usually little difference between subletting and assigning. For that reason, we often lump the two methods together and refer to them as “transfers”.

The difference between subletting and assigning

Subletting: If you transfer just part of your leased space to another tenant, on a temporary or permanent basis, its called a sublease, often times the sublease rate negotiated is below market rents with flexible terms in order to entice someone to sublet your space as apposed to going direct. The person who subleases is called a sub tenant. In a subleasing arrangement the sub tenant pays rent to you, the tenant and the tenant pays rent to the landlord under the same terms and conditions of your lease. If there is a sublease clause in your lease most often the Landlord will have to approve the sublessee and run a credit check just like they would with a normal tenant, the approval of which often is timely. You as the Tenant are ultimately responsible for the performance of your lease.

Assignment: By contrast, an assignment occurs when you transfer all your space to someone else (called an assignee) for the entire remaining term of your lease. (You can instead terminate the lease), which is often preferable if you want to move on and never come back, you’ll look for someone to completely take over the lease-assignment. In an assignment, the new tenant pays rent directly to the landlord Importantly, since you’ve given away all of your interest in the lease, you have no rights to retake the property or to evict the assignee for nonpayment of rent. You have to be careful not to assume that because you sublet your space or assigned the entire lease to another tenant, you’re relived of some or all of your obligations. Often, you’re still responsible for paying the rent if they subtenant or assignee fails to pay and making good on other lease obligations unless the Landlord releases you of financial obligations of the lease. Most landlords prefer that the Tenant buy-out their lease and go direct with a new Tenant rather than doing a sublease or assignment arrangement for a couple reasons

1) Extend the lease beyond the initial maturity date

2) Market conditions most likely changed since the initial lease was signed, the market rents most likely have increased since the original tenant took occupancy.

Here is an example of Subletting/Assignment clause, please note, this language is not a substitute for personalized advice from a knowledgeable real estate attorney, always consult an attorney who is licensed to practice in your state.

Tenant shall have the right to assign its lease or sublet the premises with the Landlord’s prior written consent providing that the Tenant or sub lessee will not violate any other restrictive covenant, then in effect in the center and of which Tenant has notice. It is expressly understood that Tenant shall have the unrestricted right to assign, sublet, license or transfer (hereinafter collectively “Transfer”) any or all of its rights and privileges under the lease.

You should consider both options and the consequences before deciding to subletting or assign your lease. You may find yourself wanting to move back into your space and if you assign your lease you give up that right. If you can’t terminate your lease which is the cleanest and lease complicated solution be sure that any assignee is a rock solid Tenant, or structure the transfer as a sublet, so that if the subtenant falls short, you can at least retake and use the space.

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