Background:

The Property Protocols website, a source of high-quality, free professional advice covering various aspects of the property industry, recently published a protocol to deal with Applications for Consent to Assign or Sublet.  The document is succinct and practical, providing a simple framework for the process of obtaining Landlord's consent.  Consent to assign and sublet is necessary in the vast majority of leases and the protocol aims to provide a clear process for both parties to follow, complete with timescales and checklists. 

Uses:

The protocol sets out to clarify an area that is otherwise only bounded by the landlord's 'reasonableness' – which itself would ultimately be for a Court to decide- but long before that point there needs to be a sense of direction and clarity for both parties if the assignment or subletting is to proceed smoothly.  The protocol therefore sets out some check-list style points such as the information the tenant is to provide at the outset, what triggers the need for superior landlord's consent and the information the landlord should cover in replying to the application.  By the author's admission, the protocol is not exhaustive, but as it is an unenforceable, voluntary procedure it is not designed to be exhaustive; more informative. 

In terms of remedies should the process go wrong, the protocol suggests Alternative Dispute Resolution over litigation and proposes a number of ways this might be carried out, including some useful starting points for those looking for a mediator.

It is possible that those most likely to agree to follow the protocol are those least likely to run into difficulties, but having a clear timetable from the outset cannot hinder a transaction.  Should one party not wish to follow the protocol there is still no reason why the other couldn't use it for guidance.

Consent to assign and sublet is necessary in the vast majority of leases, the Property Protocols website, a source of high-quality, free professional advice covering various aspects of the property industry, recently published a protocol to deal with Applications for Consent to Assign or Sublet and this article has summarised the key points for tenants as a checklist.

Tenant's Checklists:

For any consent application to run smoothly you're best to:

  • Check the terms of your lease at the very start - there may be wording about how to apply for consent, and you will have to act in accordance with this.  
  • There will almost certainly be a section about 'service of notices' which will supply the correct address or contact to send such an application to.  Don't assume that you will know who needs to see it, the lease may say different!
  • Provide the landlord with necessary supporting information in one package.  This will help prevent confusion and miscommunication which can cause ill-feeling on both sides.
  • If the application is urgent for any reason, let the landlord know the reason (if you can), together with a suitable timescale from the outset.  Leases will not usually specify a response time and if the matter is really pressing, clear communication of this is important.

Are you assigning your lease? If so:

Make sure that your landlord has the relevant information about the prospective assignee by providing them with:

  • a description of the assignee's business, their company number and registered office.
  • bank/accountant's references for the assignee if possible.
  • the last three year's accounts (in the absence of these a business plan with profit forecasts can serve).  This is to demonstrate that your potential assignee is a 'good covenant' i.e. able to meet the costs of occupying the property.
  • if a guarantor is proposed, their company details and information on their financial soundness.
  • Provide a solicitor's undertaking to meet the landlord's (reasonable) legal and professional costs.  Providing this with the application reassures the landlord that their costs will be recovered.

Are you subletting?

  • The financial check and description of business points mentioned above in relation to assignment also apply here: the landlord will want to know who may be occupying.
  • You or your solicitor should prepare a draft sublease, or at least an outline of its terms, particularly those points covering how the subtenant can share or, in turn, sub-let the property.