Jay Gitles Publishes Article in Commercial Leasing Law & Strategy (September 2008) "Consent To Sublease -- Issues To Consider From The Subtenant's Perspective"

Substantial portions of commercial space are commonly available via sublease. In comparison with a direct lease (which customarily becomes effective upon execution and delivery by the Landlord and the Tenant), a sublease usually only becomes effective if and when the Sublandlord and Subtenant execute and deliver the Sublease and the Master Landlord executes and delivers a Consent to Sublease. Typically, after what may have been a lengthy and arduous Sublease negotiation between the Subtenant and the Sublandlord, the Master Landlord will provide the Sublandlord and Subtenant with the Master Landlord’s standard form of Consent to Sublease, which the Master Landlord will require them to sign as a condition to granting the Master Landlord’s consent. Most Master Landlord’s standard forms of Consent to Sublease are rather basic and routinely fail to capture many issues that could be important to a Subtenant. Accordingly, a Subtenant should take these last steps in the Sublease documentation phase seriously and carefully review the Consent to Sublease and consider the issues described in this article before finalizing the Consent to Sublease. Also, this article offers a sample, arm’s length negotiated Consent to Sublease provision.