PROPERTY Flashcards
ISSUE: Can the landlord argue that he lawfully withheld his consent to the assignment of the lease?
Yes. The landlord will argue that the lease provision prohibiting assignment without his written consent was valid and that he could withhold consent for any reason or for no reason at all. The landlord will also argue that, even if this jurisdiction’s law requires that his refusal to accept the assignment be reasonable, his decision to withhold consent here was reasonable, given his past experiences with lawyers as tenants.
Here, the tenant attempted to assign her lease – that is, to transfer the balance of the lease term – to a lawyer. A restriction on assignment is a valid restraint on alienation. Because a restraint on transfer by assignment is valid, the lease provision here prohibiting an assignment without the landlord’s consent was valid.
The landlord will argue that he was free to withhold his consent for any reason or for no reason at all. The clause in the tenant’s lease is commonly described as a “silent” consent clause because it does not include an express standard or condition for the giving or withholding of consent. Under the traditional rule – still the majority rule today – a silent consent clause gives the landlord the right to withhold consent for any reason or for no reason – even if the withholding of consent is arbitrary and unreasonable. (That rule, however, is subject to statutory housing discrimination laws that are not at issue here.)
Alternatively, the landlord will argue that, even if this jurisdiction is one of the minority group in which refusal to consent to an assignment must be reasonable, his refusal was reasonable in light of his personal experiences renting to lawyers; his refusal represented a legitimate business judgment.
