Pro Tanto Assignments And Other Problems We’ve Seen (Part 2)

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Who isn’t in favor of tantos? Last week (click HERE to see), we ended the Ruminations blog posting with a promise to explain an “assignment pro tanto.” We’ll start with what “tanto” isn’t. In the leasing context, it isn’t “a Japanese short sword or dagger.” What it is, is a close cousin of the musical direction (try, on sheet music) of “tanto – too much; so much.” We’ve stalled enough, so here we go:

Assignments Pro-Tanto

Having raised the specter of an “assignment pro tanto, it is only proper that this unusual and possibly dangerous hybrid be described – especially in a treatment of common and uncommon assignment / subletting problems.  Simply speaking, this animal is the transfer, to another, of a tenant’s entire interest in a portion of leased premises, for the entire lease term.  Describing this creation as an animal may be an apt choice of terms as it may be somewhat uncontrollable.  In most jurisdictions, but not all, the landlord now has two tenants and, in effect, two leases.  The assignee may, and the operative word is: “may,” have a contractual relationship with the landlord.  If the original tenant defaults under its lease, giving rise to a lease termination, the landlord may still have a tenant, the assignee, for the portion of the leased space that was thought to merely be sublet.  The law is uncertain; there isn’t a lot of guiding case law.  But, if a tenant can assign freely under its lease, but not sublet freely, there is always the possibility of enjoying both “existences” by use of an assignment pro tanto. [Read more…]

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How Can We Get Out Of Here In One Piece? (Part 1)

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Vacation time and the living is easy. Ruminations has a big backlist of material and sometimes we cheat by reaching into it and putting an edited, usually lightly edited, version of “stuff from the vault” in the form of a blog posting. That’s what’s happening this week and at least next week. Just like a resale store, “it’s new to you.” [That is, new to at least nearly all, but not all, of our readers.] Today, tour approach adds up to the first part of a primer, from the Ruminations perspective, on assignment and subletting.

Under common law, absent a lease restriction, tenants were free to assign their leasehold interest to others or to sublet all or part of their leased space. That rule of law is of little consequence today because virtually all leases restrict assignment and subletting rights, often in excruciating detail. In addition, a small number of jurisdictions have reversed the rule by statute and there are certain kinds of leases, generally tied into personal services that are not, as a default matter, freely assignable. [Read more…]

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Be Reasonable, Whatever That Means

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Why is it reasonable to Ruminations to have steered clear of the “reasonableness” issue, i.e., what does “reasonable” mean? Despite having posted more than 280 times on similar issues, we’ve avoided this question. That’s because, like pornography, we think that when it comes to “what qualifies as ‘reasonable’,” you’ll know it when you see it. [Thanks to Justice Potter Stewart for his concurrence in Jacobellis v. Ohio, 378 U.S. 184 (1964), where he wrote the following explanation of pornography: “But I know it when I see it, and the motion picture involved in this case is not that.”]

We think one has to “see” the circumstances to get a “feel” as to what would constitute a reasonable denial of consent The Alabama Civil Court of Appeals gave us such an opportunity with its August 12, 2016 Opinion in Steve Evans v. W.G. Waldrop, an Opinion that can be seen by clicking: HERE.

There are a number of “main” lessons coming out of this Court’s Opinion and there are some interesting side issues. So, we’ll start with a short version of the story. Our reading of the Opinion shows (to us, at least) that the case was not well presented at trial. Therefore, our telling of the story will “bridge” some gaps and “resolve” some discrepancies in the testimony and in the evidence presented.

A retail tenant with a shopping center lease that ran from April of 1999 until March of 2004 stopped paying its rent in May of 2000 and moved out the next month. Then, it began looking for an assignee or subtenant. After some disappointments, it located someone interested in operating an “electronic-bingo parlor” at the leased premises. [Read more…]

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Did It Assign Or Did It Not Assign, That Is The Question

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What does it mean to assign a lease? That would seem pretty simple to answer when looking at an executed Assignment and Assumption Agreement. After all, doesn’t the title alone tell the reader that a lease has been assigned? Well, not so easy there – even well compensated lawyers can argue about this.

With slight trepidation, Ruminations will discuss this question, that trepidation based on the court decision at hand coming out of a Napoleonic civil code jurisdiction, the great State (as shouted at political nominating conventions) of Louisiana. The way the law there is described and derived may be unique among the 50, but the outcome and analysis is pretty much the same. [The case that is the underpinning for today’s blog posting can be seen by clicking: HERE.]

Here, we have a lease that permitted unlimited assignment by the tenant, but says so in this (not uncommon) way:

Tenant shall have the right at any time to assign this Lease or sublet all or any part of the Lease Premises, provided Tenant and Guarantor shall remain liable for the full performance of all terms, covenants and conditions of this Lease, and further provided, that Tenant shall give prior written notice to Landlord, and any such assignee shall agree, in writing to be bound by all the terms and provisions hereof.

So, in October of 2011, the tenant and its successor executed a document with at least the following provisions:

Assignor…shall assign, transfer and convey to Assignee all of Assignor’s right, title and interest in, to and under the Lease…effective as of the Transfer Date.

The assignment and assumption of the Lease under this Agreement shall occur and be effective on the Commencement Date as defined under that certain [other] Lease by and between Assignor and Assignee [for a store at property owned by the assignee].

Basically, the business plan was for the tenant to relocate to a nearby property owned by the “Assignee.” To induce that lease, the “Assignee” agreed to take over the tenant’s existing location and take on carrying costs and risk of not finding a replacement user. With that in mind, readers can surmise that the “Transfer Date” was the date the tenant started business in the new location. Readers can also surmise that the existing landlord’s approach to the resulting litigation was fueled, in part, by having its tenant give “oomph” to a competing shopping center.

Why was there a dispute when the tenant entered into its agreement with its future landlord? It wasn’t because the “assignment” agreement didn’t say that the “assignee” wouldn’t be bound by the terms of the lease. It was because the landlord didn’t get notice of this October, 2011 “assignment” until February of 2014, 28 months later. That was about a month before the tenant moved its store. [In the interim, in January of 2014, the “new” landlord-assignee assigned the assignment. Don’t worry; we’ll get to that “assignment.”]

We can explain the first dispute in a pretty simple way. The landlord claimed its tenant breached the lease by not giving it prior notice of the October, 2011 assignment. The tenant’s position was that the assignment was effective in February of 2014, and the notice given that January constituted prior written notice.

So, the court needed to decide if there was a “present sense” assignment of the lease. In other words, what did “prior” refer to when the lease required that the tenant give prior, written notice?

Ruminations has written so often about how agreements are interpreted by courts that providing links to those earlier blog postings would be an exhausting effort. To see some of them, try searching for “interpretation” in the search box. Today, we’ll quote the words of this Federal Court sitting in Louisiana and note that the court based its “rules of construction” on Louisiana’s Civil Code. Here are the court’s words (and they are strikingly similar to what all courts say):

Where the words of a contract are clear, explicit, and lead to no absurd consequences, meaning and intent of parties must be sought within the four corners of the instrument and cannot be explained or contradicted by parol evidence; under those circumstances, interpretation of the contract is a matter of law and summary judgment is appropriate.

Words susceptible of different meanings must be interpreted as having the meaning that best conforms to the object of the contract.

Generally, parol evidence is inadmissible to vary the terms of a written contract.

[For new readers, “parol” evidence is extrinsic material – stuff “outside” the agreement – and cannot be used to contradict the terms of a later written agreement (and, sometimes, a contemporaneous agreement).]

We’ll quickly get to what the court had to say, but first we need to tell readers one more thing about what the “assignment” said. And that is the document contained “conditions precedent” to the happening of the Transfer Date such as the issuance of a certain certificate and the new premises being in the required condition.

So, using the “rules of construction” quoted above, the court breezed right though to its conclusion that the tenant’s agreement with its new landlord was:

“an agreement to assign, and not an assignment of the Lease. ‘Assignor desires to assign,’ ‘Assignor . . .  shall assign . . .,’ and ‘[t]he assignment  . . . of the Lease under this Agreement shall occur,’ do not rise to a present assignment at execution. A conclusion to the contrary, which [the landlord] encourages, would largely moot the inclusion of “conditions precedent.”

So, because the assignment took place on the “Transfer Date,” and not when the assignment agreement was signed, giving the required notice more than two years after the agreement was signed, but before the effective date of the assignment, met the requirements in the lease.

Now, for those readers who remember, Ruminations “mentioned” a second assignment. Let’s remember that the tenant and its new landlord for the nearby location signed their agreement late in 2011, the tenant gave notice to its old landlord in February of 2014, and the assignment became effective in March of 2014. Along the way, actually in January of 2013, the new landlord assigned the “assignment” to a retailer. No notice of that assignment of the assignment was ever given to the landlord. Without any explanation, the court ruled that this document was an “assignment” as contemplated by the lease and ruled that the tenant, now a “guarantor” by reason of remaining liable on the lease after the earlier assignment, was liable to the landlord for this breach of the lease (i.e., because no notice of this transaction had been given)

Frankly, we’re puzzled and don’t have enough clues to understand why the court ruled this way. We are also puzzled as to why the tenant didn’t give notice of the second “assignment” instead of, or at the same time as it gave notice of, the first one. The facts recited by the court clearly show that the tenant was aware of the second assignment.

As to what we can’t figure out about the court’s ruling, it doesn’t make sense that it could rule that the second assignment took place before the first given that the court had already found that the first “assignment” was not effective until after it had, itself, been assigned to the ultimate user. After all, there appears to have been only one assignment of the lease itself. All the second transaction did was to change the identity of the assignee. Basically, there was only one assignment of the lease and the lease only required that the landlord get notice of the fact of an assignment of the lease. [Granted, we haven’t seen the entire lease, only the handful of words the court extracted for its own purposes.]

Despite our puzzlement, Ruminations learned something from this case. We never thought about the nature of an “assignment” of an “assignment.” We don’t know how the assignment of an assignment was drafted between the parties in this case, but we’re thinking that there is a way to prepare one that clearly is not an assignment of the lease itself. One thing that can be done is to clearly say that it isn’t an assignment of the lease (- that would be a real property conveyance -), and that it is ONLY an assignment of the assignment itself (- that would be a contract for personal property -). Is this ever a valid distinction? Ruminations thinks so. After all, a mortgage is a real property transaction and governed by real property law (and gets recorded in the land records). In contrast, a collateral assignment of the mortgage as collateral for a loan is a personal property transaction, governed by the Uniform Commercial Code (UCC) and the associated note is secured by meeting the requirements of the UCC, not by recording the collateral assignment. Technical? Yes. Structuring opportunity? Also, “Yes.”

Why might someone do that? Under the right circumstances, perhaps this way. Suppose a lease prohibits assignment by the tenant to all but affiliates. So, let the tenant assign the lease to a newly formed, wholly owned subsidiary. Then, before the assignment becomes effective, have the subsidiary CLEARLY assign the assignment, NOT the lease, to an unrelated party. Then argue that restrictions on alienability (such as by assignment) are to be strictly construed and point out that the only assignment of the lease was from the original tenant to its affiliate. After all, the assignee wasn’t the “tenant”or even a “tenant.” Form over substance? For sure. A possible way out? Well, some judges will buy it, and in doing so you’ll hear: “A court will not make a better deal for the parties than they made for themselves.” More importantly, uncertainty of result creates bargaining power. Do we predict legal success? Certainly not, but it is possible. Do we think that today’s blog posting will send us back to look at how our assignment provisions are written? Simply stated, “Yes.”

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To Recognize Or Not To Recognize? That Is The Question (Part 1)

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One important exit strategy for a large space tenant seeking to shed itself of leased space is to have the option of assigning its lease or of subletting all or part of its premises. Generally, a tenant who no longer needs its space will prefer assignment if it can be simultaneously relieved of its lease obligations or if the prospective assignee is adjudged to be rock solid. Otherwise, subletting is preferred because the departing tenant, stuck with continuing contingent liability, can retain control of its space. However, to get rid of the old tenant as an intermediary between it and the landlord, an incoming tenant would prefer to take an assignment of the existing tenant’s leasehold interest. Sometimes, such as when the incoming tenant’s rent is substantially lower than the rent payable under the lease, a lease assignment just won’t work. Thus, where assignment of the lease is not workable or where less than all of the leased space is to be transferred, subleasing is the preferred choice. [Read more…]

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How One Tenant Can Become Two Different Tenants Without A Landlord Knowing What Happened

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We think today’s subject is quite interesting, though we know that its greatest appeal will be to law “wonks.” [A “wonk” is variously “a person preoccupied with arcane details or procedures in a specialized field” or “a student who spends much time studying and has little or no social life” or “one who studies an issue or topic thoroughly or excessively” (Various sources)].

Even readers with no need to see a definition of “assignment,” might be puzzled as to the words “pro tanto.” Even those who know what those words mean probably don’t realize that you can combine “assignment” with “pro tanto” and do serious harm to one party or the other to a lease.

Simply speaking, an assignment results in one party (the assignor) turning over all of its rights to another party (the assignee). The assignor (say, a tenant), absent some other agreement with the person or entity on the other side of an agreement (say, a landlord and a lease), retains obligations under that agreement (e.g., under the “lease”), but not any rights. [That’s not entirely accurate because there are ways to retain certain rights by way of agreement between the originally contracting parties, but that’s for another day. Today, we’re going to confuse readers enough with the “pro tanto” concept, such that we don’t need to go down a tangent at this point in the posting.] Basically, the effect of a tenant assigning its interest in a lease is that the tenant under the lease changes and the landlord now has to deal with a new tenant, the assignee. [Read more…]

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A Different Take On Whether Consent To An Assignment Or Subletting Can Be Unreasonably Withheld

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What happens if a lease states merely that a tenant may not assign it or sublet the leased premises? What happens if it says the tenant may do so, but only with the landlord’s consent? A majority of jurisdictions (states), perhaps even a substantial majority, do not require a landlord to be reasonable. Even though there is such a “majority rule,” negotiators need to adapt to the minority view if the leased space is in such a jurisdiction. More importantly, the winds of “do I have to be reasonable” law are shifting. That’s because, little by little, the implied covenant of good faith and fair dealing is encroaching on the grounds where “sole discretion” used to reign. So, in jurisdictions that have required that a party act in “good faith,” even where a landlord has reserved the right to deny its consent for any reason or for no reason at all, it will not be permitted to deny its consent if doing so will defeat its tenant’s reasonably expected benefit of the bargain. Basically, the covenant, as is increasingly being interpreted, prevents a party from using a given contract right as a sword when it was intended to be a shield.

Even if at the time a lease is signed the law in a given place is pretty clear that, absent a lease saying that a landlord has to be reasonable, it can act arbitrarily, that law can change during the lease’s term. Therefore, it makes good sense, in every lease, to define the “rules” for giving or withholding consent even where you think the law is settled. [Read more…]

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How To Circumvent A Lease’s Assignment And Subletting Restrictions

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Last week, we alluded to a lease transfer situation that had recently come across our desk, and then Ruminations detoured to its usual ranting to start a discussion about why a landlord should have any right to interfere with its tenant assigning the lease or subletting the leased space. Thanks for the comments we got directly to Ruminations by way of comments, by way of comments posted to LinkedIn, and privately.

That discussion is over. The “norm” for leases is that the landlord will have some control over assignments and sublettings. That’s our starting point today.

We promised to use this week’s posting to tell readers about what “triggered” us to get into the topic of lease transfers. So, here it is. [Read more…]

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