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Considerations for landlords when consenting to sublet 


In recent years, businesses have undergone significant changes, some experiencing positive growth and expanding their operations, while others have faced financial challenges and the need to reevaluate their strategies. As companies explore options to streamline costs, one potential avenue is the practice of ‘sub-letting,’ where businesses sublease their premises to others.

This article explores the requirements for obtaining consent from landlords in Scotland for sub-leasing commercial properties and the circumstances under which landlords can legitimately refuse such consent.

Understanding Subletting to tenant

Subletting involves a commercial lease tenant granting a sublease to another party, allowing the sub-tenant to occupy the premises. This arrangement empowers the original tenant (the ‘head tenant’) to delegate the responsibility of rent payment to the sub-tenant. In some cases, the head tenant might even sub-let the property at a higher rent than stipulated in the existing lease, generating a profit.

It’s important to note that the primary lease contract between the head tenant and the landlord remains unaffected. Irrespective of the sub-tenant’s adherence to their obligations, the head tenant remains liable for fulfilling the terms of their lease, including rent payment, to the landlord.

Landlord’s Approval

In nearly all Scottish commercial leases, a provision mandates that a tenant must obtain written consent from the landlord before proceeding with subletting.

The landlord’s ability to deny consent hinges on two factors: the lease terms and the specific circumstances surrounding the proposed sub-lease. While certain leases grant landlords an absolute right to refuse consent without justification, most commercial leases specify that consent cannot be unreasonably withheld. This raises the question: when is withholding consent deemed reasonable?

In the landmark case of Burgerking Ltd v Rachel Charitable Trust, the Outer House of the Court of Session elucidated crucial principles guiding landlords’ discretion to deny subletting approval:

  1. Relevance of Reasons: Landlords cannot base consent refusal on issues unrelated to the landlord-tenant relationship, nor can they reject consent to gain secondary advantages.
  2. Providing Reasons: Landlords must furnish reasons for their decisions, allowing tenants to ascertain the reasonableness of the consent refusal. The landlord cannot subsequently rely on undisclosed reasons, even if they would have been reasonable.
  3. Validity of Reasons: If a landlord cites multiple reasons for withholding consent, validation of at least one reason is generally sufficient. However, if these reasons are intertwined or the decision relies on a cumulative rationale, the court may deem the decision unreasonable if any reason is invalid.

Landlords may justify consent refusal with several reasons. The Burgerking case, for instance, deemed it reasonable for landlords to withhold consent due to potential impacts on future market rent caused by a reverse premium paid to the sub-tenant. Other reasons might include evaluating the financial standing of the proposed sub-tenant and assessing if the sub-tenant’s business aligns with the desired trade mix in a commercial center.

Distinguishing from Assignation

Subletting diverges from assignation, wherein a lease is transferred from an existing tenant to a new one. In an assignation, lease rights and obligations transfer from the outgoing tenant to the incoming tenant, leaving the landlord with no recourse against the initial tenant. Consequently, it is generally less reasonable for landlords to deny subletting consent based on the sub-tenants financial stability, as the head tenant remains liable for rent and other dues under the original lease.

Balancing Risks and Rewards for Landlords

Consenting to sublet presents landlords with both advantages and disadvantages. On the positive side, allowing tenants to shift rent payment responsibility can ensure ongoing occupancy, preventing potential lease termination due to non-payment. Subletting also enables landlords to maximize income by minimizing vacant space.

However, risks accompany subletting. Landlords lose control over the sub-leased property, as they are not a party to the sub-lease agreement. The sub-tenant might not prove as competent an occupant as the head tenant. Moreover, if the sub-leases rent is lower than the head lease’s rent, it can influence the premises’ future rental value.

Essential Considerations for Landlords

Scottish landlords must recognize that a sublease generally requires prior consent from the landlord. Approvals should be granted or denied carefully, with attention to lease terms and specific circumstances. Legal counsel can offer guidance where necessary. In cases of consent refusal, landlords should thoroughly document reasons to mitigate potential challenges.

Conclusion: Considerations to suble

In conclusion, the landlord’s role in the process of subletting is pivotal within the realm of commercial leases. The act of subletting involves a tenant seeking to grant a sublease, allowing another party to occupy part of the property. While the original tenant, the head tenant, maintains obligations under the lease, the subtenant assumes responsibilities within the sublease. Throughout this intricate web of relationships, obtaining landlord consent stands as a cornerstone, ensuring the lawful progression of subleasing. It is crucial for landlords to approach this aspect carefully, neither unreasonably withholding consent nor compromising the tenant’s overall presence. Striking a balance between safeguarding the lease’s integrity and facilitating subleasing requires meticulous consideration of lease terms, tenant rights, and the potential impact on market rent. Ultimately, the landlord’s consent to sublease serves as a crucial checkpoint, aligning the interests of all parties involved while upholding the terms of the original lease agreement.

For more information or advice on subletting, please feel free to reach out to our Real Estate Litigation team or your designated Clarity Simplicity contact.