Commercial Lease Assignment

Real estate lawyers frequently include a clause in their commercial leases dealing with the assignment or subletting of the lease. Frequently these clauses include language like “This lease may not be assigned or sublet without the written consent of the Landlord, which shall not be unreasonably withheld.”

A recent case from the Alabama Supreme Court underscores the need to carefully draft such provisions. In a case of first impression, The Pantry, Inc. v. Mosley, No. 1110759 (Ala. May 3, 2013), the Court found that a Landlord withholding of consent to assignment of a commercial lease is unreasonable as a matter of law when motivated solely by a desire to renegotiate rent terms different from those provided for in the lease.

A real estate lawyer experienced in drafting leases can provide several options such as: a prohibition against assignment or subletting, drafting language that includes a rent escalation clause, and many other variables. Of course a commercial tenant would want an unrestricted right to assignment or subletting or at least a clause not prohibiting a transfer of the lease.


The remedies for the breach of a purchase and sale agreement need to be adequately spelled out in the agreement. Frequently the forfeiture of the earnest money which is deposited is the sole remedy available for the Buyer’s breach. However, if this is not spelled out adequately, the Seller may also be able to sue for damages and specific performance for a Buyer’s breach. Likewise, the buyer may have remedies available at law if they are not adequately identified and set forth in the purchase agreement itself.

Frequently, particular transactions call for certain remedies in addition to the mere forfeiture of earnest money.

The buyer in a large transaction may wish to consider as a remedy shifting the cost of some of the pre-closing inspections and testing in the event the seller is not able to furnish marketable title or meet the requirements set forth in the purchase agreement. This can shift significant costs such as environmental studies to the buyer.

There may also be the ability to provide for alternative dispute resolution for issues which may come up prior to closing. Consider whether or not arbitration of issues is desirable and necessary.

Consideration should also be given to what happens to documents and information if the transaction fails. Confidentiality agreements, agreements to return all documents and not to retain any copies in the event a closing does not take place, can help you protect your clients interests.