Alienation—a practical lease negotiation guide

The following Property practice note provides comprehensive and up to date legal information covering:

  • Alienation—a practical lease negotiation guide
  • Landlord’s alienation objectives
  • Tenant’s alienation objectives
  • Assignment or underletting—implications for the tenant
  • What is Code—compliant?
  • Assignment—terms implied or permitted by statute
  • Preconditions to be complied with at the time of the consent application
  • Circumstances where landlords can refuse consent to assignment
  • ‘Rents’ are not paid up to date at the date of the assignment
  • The tenant is in breach of covenant
  • More...

Alienation—a practical lease negotiation guide

This Practice Note discusses considerations when negotiating alienation provisions in a rack rent commercial lease that is a new lease for the purposes of section 1 of the Landlord and Tenant (Covenants) Act 1995 (LT(C)A 1995). It identifies key concerns for both the landlord and the tenant and considers how the alienation clauses interact with other lease provisions.

Landlord’s alienation objectives

For a landlord, controlling assignment and underletting is important to protect the value of its investment. The landlord should ensure that:

  1. at the very least, any assignee or undertenant (when judged with any available guarantor or other security on offer) is able to comply with the terms of the lease

  2. the landlord will be able to enforce the tenant covenants readily

  3. if the tenant mix is important (perhaps in a shopping centre), it is able to control this

The value of the landlord’s investment is tied to the occupational leases and the covenant strength of its tenants. At the same time, landlords are aware that if the alienation provisions are too restrictive, they could be regarded as onerous on rent review and depress the rent achievable.

Tenant’s alienation objectives

The tenant should ensure that the lease is flexible enough to allow it:

  1. to move its business

  2. to respond to business structure changes such as a corporate acquisition

  3. to deal with the lease in

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