application for consent to assignment

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Dealing with an application for consent to assign – when is it reasonable to say no.

If a lease is silent or simply states that a tenant may assign, then the tenant can assign without the need for the landlord's consent.

In reality, most commercial leases prevent the tenant from assigning without first obtaining the landlord’s consent.

Section 19(1) of the Landlord and Tenant Act 1927 (LTA 1927) provides that any qualified covenant in a lease against assigning, underletting, charging, or parting with possession of the premises or any part without the landlord’s consent, is subject to a statutory duty that consent is not to be unreasonably withheld.

The inclusion of this statutory provision raises the question “what constitutes unreasonably withholding?” There is not a straightforward answer. It requires consideration of statute and case law. This is no doubt why this application for consent to assign has landed on your desk this morning!

The impact of The Landlord and Tenant (Covenants) Act 1995

The Landlord and Tenant (Covenants) Act (LTCA 1995) inserted into s19 of the LTA 1927 a new subsection 19(1A) which provides that, in new tenancies, the parties can set out in the lease, or by other documentation, the circumstances in which consent to an assignment can be withheld and/or conditions subject to which consent may be given.

Therefore, your first step is to consider the lease and associated documentation to see whether there is any such provision. If there is such a provision in place at the time the request for consent is made, the landlord will not be held to be unreasonable in either refusing consent if the relevant circumstances exist or imposing any of the listed conditions (that is, entering into an Authorised Guarantee Agreement (“AGA”)) as are set out in the agreement entered into under s19(1A) LTA 1927.

Section 1 of the Landlord and Tenant Act 1988 (LTA 1988)

Sections 1 and 2 of the LTA 1988 impose certain duties on landlords in dealing with a written application for consent to assign, underlet, charge or part with possession.

The landlord must:

• give consent (except where it is reasonable to withhold it) and to do so within a reasonable time
• serve on the tenant written notice of their decision whether or not to give consent. The written notice should detail any conditions that the consent is subject to and if the consent is withheld, the reasons why.
• pass on applications for consent to others whose consent is also needed (that is, superior landlords or freeholders) within a reasonable period of time.

Under the LTA 1988 the burden of proof is on the landlord to show that they are acting reasonably in withholding consent.

When is it reasonable to withhold consent?

A test for reasonableness was laid down by the Court of Appeal in  International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch. 513.  The following points incorporate the guidance given by the Court of Appeal in this case:

The purpose of a covenant against assignment without the consent of the landlord (not to be unreasonably withheld) is to protect the landlord from having his premises used or occupied in an undesirable way or by an undesirable assignee.

A landlord cannot refuse consent to assign on grounds which have nothing to do with the relationship of landlord and tenant with regard to the lease of the premises

Generally, a landlord cannot refuse consent simply because the landlord is able to identify a breach of covenant in the lease. The question is whether the breach of covenant is of a nature which justifies the refusal of consent and whether the landlord has been prejudiced by the breach  (Ansa Logistics Ltd v Towerbeg Ltd [2012] EWHC 3651 (Ch)).

It is not necessary for the landlord to prove that the conclusions which led them to refuse consent are justifiable. What has to be shown is that those conclusions might be reached by a reasonable person in the circumstances.

In the case of  No1 West India Quay (Residential) Ltd v East Tower Apartments Ltd [2016] EWHC 2438 (Ch) , it was held to be reasonable in the circumstances for the landlord to require a bank reference and to arrange for its surveyor to inspect the property to check for breaches of covenant, despite the fact that these requirements were not actually specified under the lease.

Refusal of consent on the basis of good estate management may be considered reasonable, but the landlord will be expected to provide detailed evidence of the relevant policy ( Ashworth v Frazer Ltd v Gloucester City Council [2001] UKHL 59 ).

It may be reasonable for the landlord to refuse consent because of the purpose to which the proposed assignee intends to use the premises, even though that purpose is not prohibited under the lease.

There is a lot of case law surrounding this point. Some examples of where it has or has not been reasonable to refuse consent to assign are:

• where the landlord reasonably considers that the use proposed by the assignee will result in a breach of user covenant that they could enforce against, it may be reasonable to refuse consent. However, if the lease allows for only one use of the premises and the proposed use falls within that specified use it may not be reasonable to withhold consent  ( In ternational Drilling Fluids). 
• where the landlord was concerned that the proposed assignee may use the premises in a way that undermines their standing as a high class restaurant, it was held to be reasonable to refuse consent  (Rossi v Hestdrive Ltd [1985] 1 EGLR 50).
• where the landlord was concerned that the manner in which the proposed assignee is intending to trade from the restaurant is likely to undermine the premises and the premises around it, it was held to be reasonable to refuse consent  (Tollbench v Plymouth City Council (1988) 56 P & CR 194).
• where the assignee is a business rival who may cause an adverse reaction to the landlord’s trade in neighbouring premises, it may be reasonable to refuse consent  (see Sargeant v Macepark (Whittlebury) Ltd [2004] EWHC 1333 (Ch)and Sportoffer Ltd v Erewash Borough Council [1999] L & TR 433).

It may be reasonable for the landlord to refuse consent because of concerns that their contractual rights under the lease may be prejudiced by the assignment.

In the case of  British Bakeries (Midlands) v Testler & Co [1986] 1 EGLR 64,  the judge said: “A reasonable landlord is concerned with the tenant’s ability to meet the obligations under the lease as those obligations fall due”. Therefore, where the proposed assignee’s references call the assignee’s ability to pay the rent and fulfil their obligations under the lease into question, the landlord will normally be justified in withholding consent.

If the proposed assignee refuses to produce accounts or is unable to produce accounts because they are a newly incorporated company, it may be reasonable to refuse consent  (Landlord Protect Ltd v Dolman [2007] 2 EGLR 21).

If the purpose of the assignment is that the assignee can take advantage of a break clause, it may be justified for the landlord to withhold consent ( see Olympia & York Canary Wharf Ltd v Oil Property Investment Ltd (1995) 69 P & CR 43 and Ashworth Frazer Ltd v Gloucester City Council [2001] UKHL 59).

Landlords usually only need to consider their own interests and not those of the tenant. However, there may be cases where the disproportion between the benefit to the landlord and the detriment of the tenant is such that to withhold consent would be unreasonable.

A landlord can be reasonable in refusing consent if the proposed assignment would bring about the diminution in value of the landlord’s reversion. However, there are important caveats to this principle. There needs to be a genuine foreseeable prospect of the landlord wanting to realise the value of his reversion. Further, if there is a large disparity between the benefit to the landlord and the detriment to the tenant it will not be reasonable to refuse consent  (Footwear Corporation Ltd v Amplight Properties Ltd [1999] 1 WLR 551).

What if the landlord withholds consent and the tenant doesn’t agree?

If the landlord withholds consent to the assignment and the tenant thinks they are being unreasonable, there are the following options for the tenant:

• Proceed without obtaining consent. This is risky because the landlord may bring a claim for damages and/or an action for forfeiture.
• Make an application to court for a declaration that consent has been unreasonably withheld and seek damages.

Who bears the burden of proof?

Since the introduction of sections 1 and 2 of the LTA 1988, the burden of proof is on the landlord to justify, with reasons, that they have acted reasonably in refusing consent and within a reasonable time. Therefore landlords should react promptly to an application for consent to assign. They need to consider all the facts of the matter as what is considered “unreasonable” very much turns on the individual facts of each case.

This article was first published in the PLC Property Litigation Blog .

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Consent to Assignment: Everything You Need to Know

Consent to assignment refers to allowing a party of a contract (the assignor) to assign a contract and move the obligations to another party (the assignee). 3 min read updated on September 19, 2022

Consent to assignment refers to allowing a party of a contract to assign a contract and move the obligations to another party. The party of the existing contract, known as the assignor, will pass on the contract to another party, known as the assignee. The goal is for the assignee to take over the rights and obligations of the contract. For a contract to be assigned, the other party must be aware of what is happening.

Contract Assignments

The assignment of a contract differs depending on the type of contract and the language in the original agreement. Some contracts contain a clause that doesn't allow assignment at all, while other contracts have clauses that require the other party to consent before assignment can be finalized.

Consider the following scenario. A business owner contracts with a computer company to have a processor delivered every time a new model is released. The computer company assigns the business owner's contract to another provider. As long as the business owner is aware of the changes and still receives the processors as scheduled, his contract is now with the new computer company.

However, assigning a contract doesn't always exempt the assignor from their duties and responsibilities. Some contracts include a clause that states that even if the agreement is assigned to another party, the original parties guarantee that the terms of the contract will be fulfilled.

Unenforceable Assignments

There are a number of situations where a contract assignment won't be enforced , including:

• The contract has an anti-assignment clause that can stop or invalidate any assignments.
• The assignment changes the nature of the contract. An assignment that changes what is expected or impacts the performance of the contract isn't allowed. This also applies if the assignment lowers the value one party will receive or adds risk to the deal that the other party didn't originally agree to.
• The assignment is against the law. In some cases, laws or public policies don't allow assignment. Many states forbid employees to assign future wages. The federal government doesn't allow the assignment of particular claims against the government. Some assignments violate public policy. For example, a personal injury claim cannot be assigned because it could lead to litigation against a party who was not responsible for the injury.

Delegation vs. Assignment

It is common for a party to sign a contract and have someone else actually fulfill his duties and do the work required by the contract. However, some contracts can't be delegated, such as when a party agrees to service done by a particular person or company. If a company contracted with Oprah Winfrey to be a keynote speaker, Oprah wouldn't be permitted to delegate her performance duties to anyone else.

If both parties agree that the work can't be delegated, they should include specific language in the original contract. This can be as simple as a clause that states, “Neither party shall delegate or assign its rights.” Both parties should agree to this clause.

How to Assign a Contract

Assigning a contract is a three-step process. First, check to see if the contract has an anti-assignment clause or if there are limitations around assignments. Sometimes clauses are straightforward with language like, “This agreement may not be assigned,” and while other times, the language is less obvious and hidden in another clause. If there is language in the contract that states it can't be assigned, the other party must consent to an assignment before you can proceed.

Second, the parties must execute an assignment . Create an agreement that transfers the rights and obligations of one party to the assignee.

Third, notify the other party of the contract. Once the contract rights have been assigned to the new party, you should notify the other party of the original contract. Providing written notice removes you from being responsible for any part of the contract unless there is language in the contract that says differently or the assignment is illegal.

Anti-Assignment Clause

As you are negotiating and writing a contract, consider whether you want the contract to be able to be assigned. If you don't want assignment to be a legally viable option, that needs to be clearly stated in the contract.

If you need help with consent to assignment, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.

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Assignment and Consent Standards in Commercial Leases

Mar 6, 2020

Assignment provisions in commercial leases are heavily negotiated and very important to both landlords and tenants. This article presents a brief overview of the assignment provision in commercial leases, both office and retail.

Assignment provisions in commercial leases are heavily negotiated and very important to both landlords and tenants. When a tenant’s interest in a lease is assigned, the tenant is transferring its entire leasehold interest and 100% of the leased premises to a third party for the entire remaining term of the lease. For the tenant, the assignment provision represents a potential exit strategy, dependent of course on the local market, and increased flexibility for future needs. For the landlord, the assignment offers greater security for its revenue stream and hopefully the avoidance of a tenant bankruptcy or default while keeping its building occupied. The tenant’s desire for flexibility and the landlord’s need for control is where the negotiations are focused. This article presents a brief overview of the assignment provision in commercial leases, both office and retail, with particular attention on the laws of Maryland, Virginia and the District of Columbia. The landlord’s standard for providing consent to a request to an assignment will be reviewed, and we will conclude by offering suggested language.

What If The Lease Does Not Contain An Assignment Provision?

The law traditionally favors the free alienation of property. Therefore, under the laws of almost every state, if the lease is silent on whether the landlord’s consent to an assignment is required, then the commercial tenant has the right to assign its interest. This is true in Maryland, Virginia and the District of Columbia. Given this baseline, almost every lease form will have a detailed provision setting forth the assignment process. Note also, however, that in most states it is also enforceable for a commercial lease to have an outright prohibition against assignments. Such a provision would likely be a non-starting deal point for most sophisticated tenants.

What Does Reasonable Mean?

If a lease simply provides that the tenant requires landlord’s consent to an assignment, but does not include the standard for giving or withholding that consent, then in many states the implied standard is that the landlord’s consent may not be unreasonably withheld. Historically this was the minority view, with the historical rule allowing the landlord to withhold consent for any reason. The implied duty of reasonableness is now more the norm as more states adopt this position when presented with the issue. There is express case law establishing this rule in Maryland, and most courts in Virginia and Washington, DC will imply such a covenant of good faith and fair dealing. Most states, though, do allow a landlord the sole right to grant or withhold its consent if the lease clearly expressly provides, and in Maryland the lease must specifically state that the landlord’s consent may be granted or withheld in the sole and absolute subjective discretion of the landlord. Again though, a sophisticated tenant with any leverage should never agree to such a provision.

Most negotiated leases will instead contain a provision requiring that landlord’s consent to an assignment is required, but such consent will not be unreasonably withheld. The tenant will likely also try to include landlord’s obligation to not unreasonably delay or condition its consent. A short clause without further defining what constitutes “reasonableness” generally favors the tenant, and landlords typically prefer including specific standards as to the criteria it can consider when reasonably deciding whether or not to consent to an assignment. Without such specificity, defining “reasonable” is difficult as the landlord and tenant clearly will have differing viewpoints and it may be left as a factual question to be decided in litigation. The typical definition (set forth in the Restatement (Second) of Property) would be that of a reasonably prudent person in the landlord’s position exercising reasonable commercial responsibility.

Absent a detailed provision listing the criteria a landlord can consider when reasonably reviewing a request to assign, a landlord is typically found to be considered reasonable if it considers certain general broad factors. First, the landlord reviews the assignee’s proposed use. In a retail setting, the landlord will be concerned whether the proposed use fits with the existing center and/or violates any existing exclusives or insurance requirements. In an office setting, the landlord might review the expected traffic and wear and tear on the building. Second, the landlord will consider the creditworthiness of the assignee. The landlord (and the assignor) will want to be confident that the assignee is capable of performing tenant’s obligations under the lease and a large creditworthy tenant increases the value of the asset. The assignor might argue that a strict financial test (such as a minimum net worth, for example) is unfair since the assignor is likely not being released upon the assignment and the landlord can still pursue the assignor in the event of a default. Third, the landlord will review the experience and history of the assignor. As mentioned above, landlords instead prefer a detailed list setting forth the many factors that they can include as part of reasonably reviewing a request for a lease assignment.

Without further establishing the criteria, the landlord puts itself at risk of a challenge by the tenant that a denial of a consent is unreasonable.

In defining “reasonable,” courts typically do not allow a landlord to deny or condition consent to an assignment based purely on economic reasons where the landlord results in substantially increasing what it was entitled to under the lease. In Washington, DC, there is well established case law holding that it is unreasonable for a landlord to withhold consent solely to extract an economic concession or improve its economic position. For example, a court would not consider it reasonable for a landlord to condition its consent on the assignee paying a greatly increased rent. Instead, as discussed below, landlords should look to protect their interests in a market of increasing rents by providing for either the sharing of excess rentals or a right to recapture.

What Are Typical Provisions In an Assignment Clause?

As discussed above, tenants generally prefer a short assignment provision simply requiring the landlord to not unreasonably withhold, condition or delay its consent to an assignment. But most leases are drafted by landlords, and over the years the assignment provisions have evolved to contain many typical provisions in addition to further defining “reasonableness,” including the following below.

• Sharing of Excess Rents. Since many states do not permit a landlord to condition its consent on improving its economic position (e. g. , by increasing the rent), most leases instead contain a provision where the landlord is entitled to all or a portion of the profits. The profits may mean increased rent, or it may even be construed more broadly to consider the value of the location in a sale of the tenant’s business. The landlord’s argument is that it doesn’t want the tenants competing in the real estate market. The tenant should push back here, and certainly try to lower the percentage shared, carve out any consideration received in the sale of tenant’s business, and only share profits after all of the tenant’s reasonable costs incurred in connection with the assignment were first deducted.
• Corporate Transfers. Since a purchase of the entity constituting tenant is likely not deemed an assignment under the law, most leases make clear that any such corporate sale, including the sale of either a controlling interest in the stock or substantially all of the assets of the tenant, is deemed an assignment for purposes of the lease. The tenant should carve out permitted transfers for typical mergers and acquisitions under certain conditions, and also carve out routine transfers of stock (or other ownership interests) between existing partners or for estate planning purposes. The landlord will likely accept a permitted transfer concept provided they receive adequate notice and the successor entity succeeds to all of the assets of the original tenant with an acceptable net worth.
• Assignment Review Fee. Most landlords include in their form lease the requirement that the tenant reimburse them for legal and administrative expenses incurred in reviewing the request for consent and preparing the assignment. The tenant clearly wants to keep these fees reasonable and in keeping with the local market.
• Recapture Rights. Landlords like to include the express right to recapture the premises in the event the tenant comes to it to request a consent for an assignment. A recapture clause allows the landlord to terminate the lease if market rents have increased or if it needs the space for another use. Sophisticated tenants should push back here as much as leverage allows, try to limit the time periods, and if nothing else try for the right to nullify the recapture by rescinding its request for the consent.
• Tenant’s Remedy. To protect themselves from claims for damages from the tenant if the landlord withholds its consent to a requested assignment, landlords often include a provision where the tenant waives its rights to monetary damages in such a situation and can only seek injunctive relief. The tenant should try to delete this provision, or at least, if leverage permits, provide for the right to seek damages if the landlord is subsequently found to have acted in bad faith.

Assignment provisions are heavily negotiated and both the commercial landlord and tenant need to be advised to the applicable local law and know the market for a comparable transaction. ( Note: The author represents office and retail landlords and tenants throughout Virginia, Maryland and the District of Columbia.) Sample reasonableness provisions for both office and retail uses are copied below for reference.

Retail Lease

Landlord and Tenant agree, by way of example and without limitation, that it shall be reasonable for Landlord to withhold its consent if any of the following situations exist or may exist: (i) In Landlord’s reasonable business judgment, the proposed assignee lacks sufficient business experience to operate a business of the type permitted under this Lease and to a quality required under this Lease; (ii) The present net worth of the proposed assignee is lower than that of Tenant’s as of either the date of the proposed assignment or the date of this Lease; (iii) The proposed assignment would require alterations to the Premises affecting the Building’s systems or structure; (iv) The proposed assignment would require modification to the terms of this Lease, or would breach any covenant of Landlord in any other lease, insurance policy, financing agreement or other agreement relating to the Shopping Center, including, without limitation, covenants respecting radius, location, use and/or exclusivity; (v) The proposed assignment would conflict with the primary use of any existing tenant in the Shopping Center or any recorded instrument to which the Shopping Center is bound; and/or (vi) The proposed assignment or subletting would result in a reduction in the Rent collected by Landlord during any portion of the term of this Lease.

Office Lease

Without limitation as to other reasonable grounds for withholding consent, the parties hereby agree that it shall be reasonable under this Lease and under any applicable law for Landlord to withhold consent to any proposed Transfer where one or more of the following apply: (i) The Transferee is of a character or reputation or engaged in a business which is not consistent with the quality of the Building; (ii) The Transferee intends to use the Premises for purposes which are not permitted under this Lease; (iii) The Transferee is a governmental agency; (iv) The Transfer occurs prior to the first anniversary of the Lease Commencement Date; (v) The Transferee has a net worth of less than $10,000,000.00; (vi) The proposed Transfer would cause a violation or trigger a termination right of another lease for space in the Building; or (vii) Either the proposed Transferee, or any person or entity which directly or indirectly, controls, is controlled by, or is under common control with, the proposed Transferee, (i) occupies space in the Building at the time of the request for consent, or (ii) is negotiating with Landlord to lease space in the Building at such time, or (iii) has negotiated with Landlord during the six (6)-month period immediately preceding the Transfer Notice.

Reprinted with permission from the March edition of the Commercial Leasing Law & Strategy© 2020 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-257-3382 or [email protected] .

• John G. Kelly

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News & Insights

Assignments and sublets – getting the landlord’s consent.

Lauren Walker, a Senior Associate in our Real Estate team provides a quick guide to the results and time-limits relating to applications by tenants to assign or sub-let their premises.

Lease terms

A lease of commercial property will almost always include covenants (legally binding promises) dealing with assignment, subletting and other forms of passing on the benefit of the lease.  Landlords should ensure that any application from a tenant to assign or sub-let a lease complies with the terms of the lease.  If the lease includes a covenant by the tenant not to assign, underlet, charge or part with possession without the consent of the landlord or another person then it is implied that the consent is not to be unreasonably withheld or delayed.

Duty to give consent

The Landlord and Tenant Act 1988 imposes obligations on a landlord who receives an application for consent to assign or sublet, where such consent is not to be unreasonably withheld.  The landlord must:

• give consent within a reasonable time, except where it is reasonable to withhold the consent;
• serve notice of its decision on the tenant in a reasonable time specifying any conditions or giving reasons for a refusal; and
• pass on the application within a reasonable period to any relevant third party – it is important to establish at an early stage if there are superior landlords or other third parties whose consent is required.

The landlord needs to be able to show that these duties have been complied with.

What is a “reasonable period”?

The relevant period will start from the date of the tenant’s application for consent.  However, the landlord is entitled to know the true nature of the transaction and to be given sufficient information to enable it to make a decision and so it is generally the case that the relevant time period will not start until this information has been provided to the landlord.

The Court’s current view on what is a reasonable time to respond to an application for consent is that this will usually be measured in weeks rather than days, and even in complicated cases it should be measured in weeks rather than months.

The landlord must notify the tenant promptly once it has made its decision.

When will it be reasonable to withhold consent?

As with the “reasonable period” issue, the question of when it will be reasonable to withhold consent is to be established in each case upon the specific facts.  However, there are a number of guiding principles:

• A landlord is not entitled to refuse consent to an assignment on grounds that have nothing to do with the landlord and tenant relationship and the subject matter of the lease.
• It will be reasonable to refuse consent or impose conditions if this is necessary to prevent the tenant from adversely affecting the landlord’s existing rights and interest in the property.
• A landlord is entitled to take into account its other property interests as a whole (e.g. good estate management reasons).
• A landlord is entitled to be satisfied that the proposed new tenant (the assignee) is able to pay the rent and comply with the lease covenants on an assignment.  This is particularly relevant where there is disrepair. The landlord may therefore consider additional security (e.g. guarantees and rent deposits).  The financial standing of the proposed undertenant is of less significance in a sub-letting.
• A landlord of a property with numerous units is entitled to consider the type of business of the proposed new tenant and whether this accords with the landlord’s tenant-mix policy.
• A landlord can take into account serious disrepair and persistent failure to remedy breaches of the lease.
• A landlord cannot consider the loss in value of the freehold title where the landlord has no intention of selling it.
• A landlord may not use the threat of refusal or a delay in granting consent as a means to bring the tenant to the negotiating table on matters unrelated to the application in hand.

If a tenant makes an application for consent to assign or sublet and the landlord delays or refuses this, a tenant has two options:

•     Proceed without consent; or
•     Make an application to the Court for a declaration that it is entitled to proceed.

If the lease provides that the tenant requires the landlord’s consent and that this shall not be unreasonably withheld, a tenant who considers the landlord has acted unreasonably in refusing consent is able to assign or sublet anyway.  This then places the burden upon the landlord to take some action to restrain the tenant.  The obvious risk is that the tenant misjudges the landlord’s refusal and the landlord is then able to seek damages, an injunction or forfeiture of the lease and significant legal costs.

A more secure route for the tenant is to make an application to the Court for a declaration on the issue.  Here, the burden is on the tenant to prove the unreasonableness of the landlord’s conduct at the date consent was withheld or the date of the claim if the landlord did not respond.  Those proceedings can include a claim for damages against the landlord if the landlord is in breach of its duties.  The damages can also be punitive (i.e. designed to punish the landlord rather than compensate the tenant).

Under the 2007 Lease Code (an industry code of practice), landlords should generally allow assignments where the covenant strength package of the incoming tenant and any guarantor equals that of the outgoing tenant and its surety.  Authorised guarantee agreements (being a guarantee by the tenant of the assignee’s performance of the lease covenants) should only be required when the package strength is not equal or the assignee is resident overseas.  However, it remains market practice for landlords to require an authorised guarantee agreement as a matter of course.

Inadvertently granting consent

Landlord’s need to be careful to avoid granting consent in correspondence before completing a licence to assign or sublet.  The phrase “consent in principle” has been held to amount to the grant of consent. The landlord should therefore make it clear in its initial response that the landlord’s consent will not be given unless and until it is embodied in an executed and completed licence to assign.

Tips when applying for consent to assign or sublet

It is essential to have the documentation and information to hand that a landlord will want to see before they will consent to an application to assign or underlet. We have listed some of the key documents/information that a landlord would expect to see (although this list is not intended to be exhaustive):

• Details of the proposed incoming tenant including financial information and references where required and contact details for them and/or their solicitor as appropriate
• Copy of the draft deed of assignment for approval
• The landlord will expect their costs to be paid for by you and therefore you will need to have funds ready to send to your solicitor or to the landlord’s solicitor to cover these fees

Underletting

• Details of the proposed undertenant including, if necessary financial information, references and contact details for them and/or their solicitors as appropriate
• Confirmation of the proposed terms of the underletting (it may be helpful to send these to the landlord for approval in the first instance with the draft documents to follow once agreed in principle)
• Copy of the proposed lease to the undertenant and any ancillary documents including licences to alter, plans and specifications for any proposed works and any rent deposit
• The landlord will again expect their costs to be paid for by you and therefore you will need to have funds ready to send to your solicitor or to the landlord’s solicitor to cover these fees

There are very strict rules and time limits relating to applications by tenants to assign or sublet.  Any landlord who receives an application for consent from a tenant must therefore act without delay and take independent professional advice. If you require any assistance with applying for consent or dealing with an application for consent, please do get in touch with our Commercial Property team.

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Consent to Assign a Lease – Things to consider as a Landlord and a Tenant

It is very common for tenants of commercial leases to either want to, or perhaps need to, ‘get out’ of the lease. A common way of doing this is to ‘assign’ the lease to a new tenant (this may be the only option if there are no break options in the lease and the Landlord is unwilling to agree to a surrender). Kirsty Jackson , Head of our Commercial Property team , takes a look at whether a landlord has to consent when a tenant wishes to assign and what conditions they may be able to impose, but first, what does assigning a lease mean?

What is an assignment?

To assign a lease is to transfer the legal interest to another. Meaning the incoming tenant will step into the shoes of the outgoing tenant and take on the obligations under the lease. It is important to note here that assigning a lease is different to subleasing the property (where a new, shorter lease is ‘carved out’ of the existing lease) and although the points below apply equally to subletting, we are focusing on assignments.

Can the Landlord refuse consent?

If the lease is silent on assignments, the tenant is free to assign without the landlord’s consent.

If the relevant clause preventing assignments is qualified (so that the tenant can assign but only with the landlord’s consent) the landlord will be under an implied duty not to unreasonably withhold it’s consent (section 19(2) of the Landlord and Tenant Act 1927).

What are the Landlord’s duties where consent must be given

Landlord’s should be aware that the Landlord and Tenant Act 1988 imposes the following duties;

• to give consent (except where it is reasonable not to do so, which is a question of fact) within a reasonable time,
• to give written notice of the decision; and
• to pass on applications for consent to the appropriate person.

Equally, the tenant should be aware that the above duties only arise when a written application for consent is served by the tenant on the landlord (or other relevant person). Failure to serve the written application for consent means that the landlord does not have a duty to respond within a reasonable time, so tenants need to be careful when applying for consent.

What constitutes a reasonable time?

The court have previously expressed the view that a reasonable time would be weeks rather than months. Generally, the time will start when the landlord has been provided with all the necessary information required to make the decision.

Will the outgoing Tenant’s obligations continue following an assignment?

Ideally for a landlord, the lease will contain a provision that the landlord’s consent can be subject to the outgoing tenant entering into an Authorised Guarantee Agreement (AGA). An AGA is an agreement whereby the outgoing tenant will guarantee the performance by the incoming tenant of the obligations under the lease. If the incoming tenant fails to perform its obligations (including paying rent and repairing the property), the landlord can pursue the outgoing tenant. If this is the case, which it commonly is, the outgoing tenant will not be getting a ‘clean break’ as they would be if the lease was surrendered or terminated. It is therefore important that the outgoing tenant is comfortable with the incoming tenant’s ability to comply with the tenant covenants in the lease as, if they do not comply, it will impact on them and not just the landlord.

The provisions relating to AGAs are an important consideration for landlords as, if the lease is a new lease for the purposes of the Landlord and Tenant (Covenants) Act 1995 (a tenancy granted on or after 1 January 1996), the outgoing tenant would not remain liable throughout the term unless it has entered into an AGA.

The assignment provision in the lease may also provide that the landlord can refuse consent in certain circumstances, such as, if, in the landlord's reasonable opinion, the incoming tenant is not of sufficient financial standing to enable it to comply with the tenant's covenants and conditions contained in this lease. It is important for both parties to check the terms of the lease carefully.

How is consent given?

Often the lease will state that the consent must be given by Deed and a formal Licence to

Assign will need to be entered into. Landlords need to be careful to avoid granting consent in correspondence before completing the formal Licence to Assign. The landlord should make it clear in its initial response that the landlord’s consent will not be given unless and until it is embodied in an executed and completed Licence to Assign.

Both the incoming and outgoing tenant should bear in mind that the landlord will likely incur legal fees when an application is made for consent to assign. Landlord’s will not want to pay for solicitors fees each time a tenant wishes to assign, meaning the outgoing and incoming tenant will need to come to an agreement as to who will be responsible for these.

For more information on anything covered in this article, please get in touch with our team of experts at [email protected] , fill out our online enquiry form or call us on 01484 821 500.

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Landlord Consent to Assignment of Lease

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Fisheries, Forestry and Agriculture

Crown Lands

Transfer Crown Lands

To transfer/assign a lease/licence from one individual to another, the following steps are required by the seller(s) and the purchaser(s):

Before you apply

• All lease/licence rental fees must be paid up to date.
• An assignment application fee of $200.00 must be paid through the Central Cashiers Office at (709) 729-3042.
• All signatures must be witnessed by a person authorized to witness a signature.
• Ensure the purchase price is included on the Notice of Assignment Lease/Licence portion of the form.
• All addresses and contact information must be up to date and complete.
• Confirm location of Title being transferred is on the Provincial Land Use Atlas .
• In the event of a deceased Title holder. please contact please contact the Crown Lands Inquiries Line at 1-833-891-3249 or  [email protected] .
• Prior to approval of a Crown lands transfer, the Department shall conduct a review to determine whether both the Seller and Purchaser is in good financial standing with the Crown Lands Division.

Completing the application

Application for Consent and Notice of Assignment of Lease/Licence  (322 KB)

Submitting your application

Completed applications, confirmation of payment and supporting documents may be submitted by email to [email protected]  or to a  Crown Lands Regional Office .

Please note that no financial transactions between parties should occur until Consent of the Minister is received.

Federal Communications Commission

Application for Assignments of Authorization and Transfers of Control

Online Application Form (Electronic Version of FCC Form 603) Information and Instructions

Return to Assignment of Authorization and Transfer of Control Help   |   Help Menu

NOTICE TO INDIVIDUALS REQUIRED BY THE PRIVACY ACT OF 1974 AND THE PAPERWORK REDUCTION ACT OF 1995

We have estimated that each response to this collection of information will take on average 4 hours. Our estimate includes the time to read the instructions, look through existing records, gather and maintain required data, and actually complete and review the form or response. If you have any comments on this estimate, or on how we can improve the collection and reduce the burden it causes you, please write the Federal Communications Commission, AMD-PERM, Washington, DC 20554, Paperwork Reduction Project (3060-0800). We will also accept your comments via the Internet if you send them to [email protected] . Please do not send completed application forms to this address.

You are not required to respond to a collection of information sponsored by the Federal government, and the government may not conduct or sponsor this collection unless it displays a currently valid OMB control number or if we fail to provide you with this notice. This collection has been assigned an OMB control number of 3060-0800.

The FCC is authorized under the Communications Act of 1934, as amended, to collect the personal information we request in this form. We will use the information you provide to determine whether approving this application is in the public interest. If we believe there may be a violation or potential violation of a statute, FCC regulation, rule or order, your application may be referred to the Federal, state, or local agency responsible for investigating, prosecuting, enforcing or implementing the statute, rule, regulation or order. In certain cases, the information in your application may be disclosed to the Department of Justice or a court or adjudicative body when (a) the FCC; or (b) any employee of the FCC; or � the United States Government, is a party to a proceeding before the body or has an interest in the proceeding.

If you owe a past due debt to the Federal government, the Taxpayer Identification Number (such as your Employer Identification Number or Social Security Number) and other information you provide may also be disclosed to the Department of Treasury Financial Management Service, other federal agencies and/or your employer to offset your salary, IRS tax refund or other payments to collect that debt. The FCC may also provide this information to these agencies through the matching of computer records when authorized.

In addition, all information provided in this form, except Taxpayer Identification Number, will be available for public inspection. If you do not provide the information we request on the form, the FCC may delay processing of your application or may return your application without action.

This notice is required by the Privacy Act of 1974, Public Law 93-579, December 31, 1974, 5 U.S.C. Section 552a(e)(3) and the Paperwork Reduction Act of 1995, Public Law 104-13, October 1, 1995, 44 U.S.C. 3507.

Top   |   Assignment of Authorization and Transfer of Control Help   |   Help Menu

General Information

Purpose of Form

FCC Form 603 is used to apply for approval of assignments of authorization and transfers of control in the Public Mobile Services, Personal Communications Services, General Wireless Communications Services, Private Land Mobile Radio Services, Broadcast Auxiliary Services, Fixed Microwave Services, Maritime Services (excluding ships), and Aviation Services (excluding aircraft).

The purpose of this form is to collect data pertaining to the proposed assignment of authorization or transfer of control. This data is used by the FCC to determine whether the public interest would be served by a grant of the requested assignment or transfer.

Who Must File and When

Assignment of Authorization

An Assignment of an Authorization must be requested from the FCC when a license is assigned to another party. An Assignment of Authorization involves a complete transfer of controlling interest in ownership in the license and generally involves the changing of the Licensee name. Refer to the applicable FCC Rules for definitions of controlling interest and ownership.

For assignment of one or more authorizations, the assignor must apply for approval using this form, FCC Form 603. In the case of an involuntary assignment of authorization, the assignor must apply no later than 30 days after the event causing the assignment. Note that this form must be signed by both the assignor and assignee. In addition, the assignee must file FCC Wireless Telecommunications Bureau Ownership Form, FCC Form 602, unless ownership information is already on file at the FCC.

The assignor may apply for authorization to assign either all of the facilities of a station or market or just a portion of these facilities or markets.

Full Assignment of Authorization

When the authorization for all of the facilities of a station or market is assigned, this is called a full assignment of authorization . To apply for a full assignment, the assignor must complete the Authorizations To Be Assigned section.

Partial Assignment of Authorization

When authorization for some, but not all, of the facilities of a station or market is assigned, this is called a partial assignment of authorization . For each partial assignment of authorization, the assignee must apply for authorization to operate the facilities for which authority is being assigned, either as a new station or as a modification to an existing station already authorized to the assignee.

Transfer of Control

A Transfer of Control must be requested from the FCC when the transfer of controlling interest in the ownership of a licensee entity to another party or parties occurs. A Transfer of Control involves a transfer of controlling interest in ownership but generally does not involve the changing of the Licensee name. Refer to the applicable FCC Rules for definitions of controlling interest and ownership.

To apply for transfer of control, the licensee must use this form, FCC Form 603. The licensee must also complete and submit an FCC Wireless Telecommunications Bureau Ownership Form, FCC Form 602, with exhibits describing how the ownership structure would be changed by the transfer of control.

Sixty-Day Period

Assignments of authorization and transfers of control must be consummated within 60 days of FCC approval, unless the FCC grants an extension of time to complete a specific transaction. To request that the FCC grant an extension of time to complete the transaction, file Application for Assignments of Authorization and Transfers of Control, FCC Form 603, and submit Schedule for Request for Extension of Time for Assignments of Authorization or Transfers of Control, FCC Form 603, Schedule E.

If an assignment of authorization or transfer of control is not consummated within 60 days, or within the time allowed under an extension, FCC approval of that transaction is no longer valid.

Notification of Consummation

Upon consummation of any assignment of authorization, the assignee must notify the FCC of the date of consummation. Upon consummation of any transfer of control, the transferee must notify the FCC of the date of consummation. To notify the FCC that the transaction has been consummated, file Application for Assignments of Authorization and Transfers of Control, FCC Form 603, and attach Schedule for Notification of Consummation of Assignment of Authorization or Transfer of Control, FCC Form 603, Schedule D.

Information Current and Complete

Information filed with the FCC must be kept current and complete. The applicant must notify the FCC regarding any substantial and significant changes in the information furnished in the application(s). See Section 1.65 of the Commission's rules.

Electronic Filing

Applicants filing FCC Form 603 via the Universal Licensing System are not required to submit the paper FCC Form 603. Applicants filing paper copies should follow procedures contained in the instructions that accompany the hardcopy FCC Form 603.

Processing Fee

A processing fee may be required with this form. To determine the required fee amount, refer to Subpart G of Part 1 of the Code of Federal Regulations (47 CFR part 1, Subpart G) and the current Wireless Telecommunications Bureau Fee Filing Guide. For assistance with fees applicable to the radio services governed by the FCC's rules, call (202) 418-0220 or 1-888-CALL-FCC (225-5322). The Fee Filing Guide can be downloaded from the FCC's Internet site @ http://www.fcc.gov/fees or obtained by calling the FCC's Forms Distribution Center at (800) 418-3676.

Applicable Rules and Regulations

Applicants should obtain the relevant parts of the FCC's rules in 47 CFR. Copies of 47 CFR may be purchased from the Superintendent of Documents; Government Printing Office; Washington, DC 20402; (202) 512-1800. Refer also to the Government Printing Office's Website at http://www.access.gpo.gov. Some FCC rules require applicants to attach one or more exhibits to an application in addition to the information requested in the application form.

Each document attached as an exhibit must be current as of the date of filing. Each page of each exhibit must be identified with the number or letter of the exhibit, the number of the page of the exhibit, and the total number of pages of the exhibit.

For Assistance

For assistance with this application, contact the Federal Communications Commission, 1270 Fairfield Road, Gettysburg, PA 17325-7245, call 1-888-CALL-FCC (225-5322).

Electronic Filers

For assistance with filing electronically, contact the Wireless Telecommunications Bureau Technical Support line at (202) 414-1250.

Instructions for FCC Form 603

The data entry fields on the Assignment Application are grouped into the following pages, each represented by a tab at the top of the screen:

Main Form Pages: Application Information Assignor Transferor (for Transfers of Control only) Assignee/Transferee Assignee/Transferee Qualifications Assignor/Transferor Certification Statements Assignee/Transferee Certification Statements Schedule Pages: Schedule A Assignment/Transfer (does not appear for partition and disaggregation) P&D Coverage Requirements (appears only when filing a partition and/or disaggregation of a market area) P&D Specifications (appears only when filing a partition and/or disaggregation of a market area)

To obtain information on one or more fields on one of these pages, click the corresponding tab at the top of the screen. Go to Assignment of Authorization and Transfer of Control Help for basic guidelines for using the online application.

Application Information

• AA - Assignment of Authorization: To request an assignment of authorization. This purpose should only be used for initial applications.
• TC - Transfer of Control: To request a transfer of control. This purpose should only be used for initial applications.
• AM - Amendment: To amend a previously-filed, currently pending application. All appropriate schedules must be completed, and must accurately reflect the amendment’s data. See applicable Commission rules.
• WD - Withdrawal: To withdraw a previously-filed, currently pending application.
• NT - Required Notifications: To notify the FCC that, within the required time period an assignment of authorization or transfer of control has been consummated.
• EX - Request for Extension of Time: To request additional time to consummate an assignment of authorization or transfer of control.

If the filing is an amendment (AM) or withdrawal (WD) of a previously-filed application, provide the File Number of the original application. This information can be obtained by using the ULS Application Search facility.

Type of Transaction Information

• A pro forma assignment of authorization is one for which the actual controlling party does not change. For example, if an authorization is assigned by one wholly-owned subsidiary of a parent corporation to another wholly-owned subsidiary of the same corporation, this would be a pro forma assignment of authorization.
• A pro forma transfer of control is one for which the actual controlling party does not change. For example, a corporate restructuring that changes the chain of ownership to the controlling corporation may give rise to a pro forma transfer of control of a licensee.

For assignments of authorization only, is this a partition and/or disaggregation? Enter Yes if this application is for a partition and/or a disaggregation of market based services; otherwise, enter No.

IMPORTANT!!!  All site-based services must respond "Yes" to this question, regardless of whether they are filing for a full or partial assignment.

Transaction Information

How will the assignment of authorization or transfer of control be accomplished? This item indicates how the assignment of authorization or transfer of control is to be accomplished. If the facilities are to be sold, or the stock of the licensee or the entity controlling the licensee is to be assigned or transferred to another entity, answer this item S. If the assignment of authorization or transfer of control is to be accomplished by court order, answer this item C. If O is indicated, the assignor or transferor must attach an exhibit that explains how the transfer is to be accomplished. Refer to Filing Attachments instructions for more information.

The assignment of authorization or transfer of control of license is: This item indicates whether the assignment of authorization or transfer of control is voluntary or involuntary.

The ULS automatically pre-fills the Licensee/Assignor Information with the information provided during ULS Call Sign Registration (Form FCC 606).

Ethnicity, Race, Gender of Assignor/Licensee (Optional)

This information is optional and is requested for informational purposes only. Responses to this item will in no way affect processing of applications.

Name of Contact Representative

The data entry fields in the Name of Contact Representative section identify the contact representative, if different from the assignor. Completion of this section is optional. Entries made in this section apply to this transaction only.

Note:   Once an entry is present in any field in the Name of Contact Representative section, the following entries are required at a minimum:   Name (either First Name and Last Name or Entity Name), either P.O. Box or Street Address (may enter both), City, State, Zip, and Telephone Number.

First Name, MI, Last Name, Suffix Enter the first name, middle initial (optional), last name, and suffix (if applicable) of the contact representative.

Entity Name Enter the contact representative's business name or company name. For example, if the contact representative is an attorney, enter the name of the law firm.

P.O. Box Enter the post office box of the contact representative. A P.O. Box must be entered if no street address has been specified. You may specify both a P.O. Box and a street address, if desired.

Address Enter the street address of the contact representative. A street address must be entered if no P.O. Box has been specified. You may specify both a P.O. Box and a street address, if desired.

City Enter the city of the contact representative.

State Enter the state of the contact representative.

Zip Enter the zip code of the contact representative. If you are entering a 9-digit zip code, do not enter a dash.

Phone No. Enter the contact representative's telephone number, including area code. Do not enter punctuation (such as parentheses or dashes).

FAX Enter the contact representative's fax number, including area code. Do not enter punctuation (such as parentheses or dashes).

E-Mail Enter the contact representative's e-mail address, if desired and available.

After reviewing the Assignor Information page, click the Next Page button at the bottom of the screen.

These items identify the person or entity that is applying for consent to transfer control of the license.

If you fill in the Taxpayer Information Number field (and, if applicable, the SGIN field), then click the Retrieve TIN Data button, the ULS fills the Transferor Information with the information currently on file with the Universal Licensing System for the TIN.

Taxpayer Information Number Enter the Taxpayer Identification Number of the transferor. For individuals, enter the Social Security Number. For all other filers, enter the Employer Identification Number. This data is required to comply with the Debt Collection Improvement Act of 1996. This information will not be made available for public inspection.

SGIN This item must be filled out if in addition to providing a TIN, you have obtained a Sub-Group Identification Number (SGIN) from the FCC. A SGIN is required in instances where the applicant or licensee does not have a unique TIN because it is a sub-group or department of the entity identified by the TIN ( e.g. , a governmental entity or academic institution) and therefore shares the TIN with other subgroups or departments of the same entity. The SGIN allows each sub-group to track the licenses it holds. The SGIN is not needed for entities that have a unique TIN that is not used by any other licensee.

Name of Transferor Contact Representative

The data entry fields in the Name of Contact Representative section identify the contact representative, if different from the transferor. This is usually the headquarters office of a large company, the law firm or other representative of the assignee/transferee, or the person or company that prepared or submitted the application on behalf of the assignee/transferee. If there is a question about the application, an FCC representative will communicate with the transferee's contact representative.

Completion of this section is optional.

Assignee/Transferee

Assignee/Transferee Information

These items identify the person or entity that is applying to become or control the licensee of the authorizations listed in this application. For an assignment of authorization, the information provided in these items will become the licensee’s name, address, and telephone number of record, and the authorization will be sent to this address. The assignee is the party that will become the new licensee if the application is granted. In an application for consent to transfer control of the license, the transferee is the party that will have controlling interest in ownership of the license.

The Assignee/Transferee must be registered with the ULS prior to filing an application for assignment of authorization. To register with the ULS, use the ULS Registration function to register your Taxpayer Identification Number, Sub-Group Identification Number (if desired), and self-assigned password with the Universal Licensing System.

If you fill in the Taxpayer Information Number field (and, if applicable, the SGIN field), then click the Retrieve TIN Data button, the ULS fills the Assignee/Transferee Information with the information currently on file with the Universal Licensing System for the TIN.

Taxpayer Information Number Enter the Taxpayer Identification Number of the assignee/transferee. For individuals, enter the Social Security Number. For all other filers, enter the Employer Identification Number. This data is required to comply with the Debt Collection Improvement Act of 1996. This information will not be made available for public inspection.

The Assignee is a (an) Click the down arrow and select the type of legal entity that describes the assignee/transferee.

Modify or add to the pre-filled Assignee/Transferee data as necessary. A description of each entry field follows. Click the Next Page button at the bottom of the screen to proceed to the next page of the application.

First Name, MI, Last Name, Suffix If the assignee is filing as an Individual, enter the first name, middle initial (optional), last name, and suffix (if applicable) of the assignee.

Entity Name If the assignee is filing as a Corporation, Unincorporated Association, Joint Venture, Limited Liability Corporation, Trust, Partnership, or Government Entity, enter the name of the entity.

Attention To Enter the name of the person to whom the FCC should send correspondence.

P.O. Box Enter the post office box to where the FCC should send correspondence. A P.O. Box must be entered if no street address has been specified. You may specify both a P.O. Box and a street address, providing the same city, state, and zip code apply to both.

Address Enter the street address to where the FCC should send correspondence. A street address must be entered if no P.O. Box has been specified. You may specify both a P.O. Box and a street address, providing the same city, state, and zip code apply to both.

City Enter the city to where the FCC should send correspondence.

State Enter the state to where the FCC should send correspondence.

Zip Enter the zip code to where the FCC should send correspondence. If you are entering a 9-digit zip code, do not enter a dash.

Phone No. Enter the assignee's telephone number, including area code. Do not enter punctuation (such as parentheses or dashes).

FAX Enter the assignee's fax number, including area code. Do not enter punctuation (such as parentheses or dashes).

E-Mail Enter the assignee's e-mail address, if desired and available.

Name of Real Party In Interest For assignments of authorization only: Assignees must identify a real party (parties) in interest if different from the applicant. If the applicant is also the real party in interest, enter the applicant's name in this item. This field is pre-filled if a Real Party of Interest TIN is entered.

TIN For assignments of authorization only: Enter the Taxpayer Identification Number for the Real Party in Interest. For individuals, enter the Social Security Number. For all other filers, enter the Employer Identification Number. This information will not be made available for public inspection.

The data entry fields in the Name of Contact Representative section identify the contact representative, if different from the assignee/transferee. This is usually the headquarters office of a large company, the law firm or other representative of the assignee/transferee, or the person or company that prepared or submitted the application on behalf of the assignee/transferee. If there is a question about the application, an FCC representative will communicate with the assignee/transferee's contact representative.

Ethnicity, Race, Gender of Assignee/Transferee (Optional)

After completing the Assignee Information page, click the Next Page button at the bottom of the screen.

Assignee/Transferee Qualifications

Alien Ownership Questions

These items enable the FCC to determine whether an applicant is eligible under Section 310(a) and (b) of the Communications Act of 1934, as amended, to hold or have ownership interest in a station license. Assignees/transferees are required to answer these questions only if they are filing Form 603 for one of the following purposes: Assignment of Authorization or Transfer of Control. Assignees/transferees using Form 603 for any other purpose are not required to answer these questions. A Yes answer to any question requires an exhibit to be attached explaining the circumstances. Refer to Filing Attachments instructions for more information.

Is the Assignee or Transferee a foreign government or the representative of any foreign government? All assignees/transferees filing Form 603 for one of the purposes indicated above must answer this item. The FCC cannot grant an authorization to a foreign government or the representative of a foreign government. Therefore, if the true and correct answer to this item is ‘Yes’, the assignee/transferee is not eligible for a license and the FCC will dismiss the application, if filed, without further consideration.

Is the Assignee or Transferee an alien or the representative of an alien? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances. The FCC cannot grant an authorization to provide commercial radio service to any assignee/transferee for which the true and correct answer to this question is Yes.

Is the Assignee or Transferee a corporation organized under the laws of any foreign government? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances. The FCC cannot grant an authorization to provide commercial radio service to any assignee/transferee for which the true and correct answer to this question is Yes.

Is the Assignee or Transferee a corporation of which more than one-fifth of the capital stock is owned of record or voted by aliens or their representatives or by a foreign government or representative thereof or by any corporation organized under the laws of a foreign country? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances. The FCC cannot grant an authorization to provide commercial radio service to any assignee/transferee for which the true and correct answer to this question is Yes.

Is the Assignee or Transferee directly or indirectly controlled by any other corporation of which more than one-fourth of the capital stock is owned of record or voted by aliens, their representatives, or by a foreign government or representative thereof, or by any corporation organized under the laws of a foreign country? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances. The FCC cannot grant an authorization to provide commercial radio service to any assignee/transferee for which the true and correct answer to this question is Yes.

Basic Qualification Questions

The Basic Qualification Questions request information that enables the Commission to determine whether the assignee/transferee is qualified to hold an FCC authorization. If the answer to any one or more of these questions is Yes, attach as an exhibit a statement explaining the circumstances and a statement giving the reasons why the assignee/transferee believes that grant of the application would be in the public interest notwithstanding the actual or alleged misconduct.

Has the Assignee or Transferee or any party to this application or amendment had any FCC station authorization, license, or construction permit revoked or had any application for an initial, modification or renewal of FCC station authorization, license, or construction permit denied by the Commission? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances.

Has the Assignee or Transferee or any party to this application or amendment, or any party directly or indirectly controlling the Assignee or any party to this application, ever been convicted of a felony by any state or federal court? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances.

Has any court finally adjudged the Assignee or Transferee or any party directly or indirectly controlling the Assignee, guilty of unlawfully monopolizing or attempting unlawfully to monopolize radio communication, directly or indirectly, through control of manufacture or sale of radio apparatus, exclusive traffic arrangement, or any other means or unfair methods of competition? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances.

Is the Assignee or Transferee or any party directly or indirectly controlling the Assignee or Transferee, currently a party in any pending matter referred to in the preceding two questions? Select either Yes or No. If Yes, attach an exhibit explaining the circumstances.

After completing the Assignee/Transferee Qualifications page, click the Next Page button at the bottom of the screen.

Assignor/Transferor Certification Statements

All of the fields in this section must be completed. Applications and amendments must be signed in accordance with Part 1 of the FCC rules. The signor must be a person authorized by the Assignor/Transferor to sign the application.

First Name Enter the first name of the party authorized by the Assignor/Transferor to sign the application.

MI Enter the middle initial of the party authorized by the Assignor/Transferor to sign the application. This field is optional.

Last Name Enter the last name of the party authorized by the Assignor/Transferor to sign the application.

Suffix Enter the suffix (if applicable) of the party authorized by the Assignor/Transferor to sign the application. This field is optional.

Title Enter the job title of the party authorized to sign. This field is optional.

Signature This field will be automatically populated as the First Name, MI (Middle Initial), Last Name, and Suffix are entered. This field cannot be modified. The entry in the Signature field represents the legal signature of the party authorized to sign the application.

IMPORTANT!!! By entering a name into these fields, you are legally signing the application.

This signature certifies that all information provided on both the Main Form application and any associated schedules is true and correct and that the Assignor/Transferor is in compliance with all of the General Certification Statements on the Main Form and any schedules filed with the application.

WILLFUL FALSE STATEMENTS MADE ON THIS FORM OR ANY ATTACHMENTS ARE PUNISHABLE BY FINE AND/OR IMPRISONMENT (U.S. Code, Title 18, Section 1001) AND/OR REVOCATION OF ANY STATION LICENSE OR CONSTRUCTION PERMIT (U.S. Code, Title 47, Section 312(a)(1)), AND/OR FORFEITURE (U.S. Code, Title 47, Section 503).

After completing the Assignor Certification Statements page, click the Next Page button at the bottom of the screen.

Assignee/Transferee Certification Statements

All of the fields in this section must be completed. Applications and amendments must be signed in accordance with Part 1 of the FCC rules. The signor must be a person authorized by the Assignee/Transferee to sign the application.

First Name Enter the first name of the party authorized by the Assignee/Transferee to sign the application.

MI Enter the middle initial of the party authorized by the Assignee/Transferee to sign the application. This field is optional.

Last Name Enter the last name of the party authorized by the Assignee/Transferee to sign the application.

Suffix Enter the suffix (if applicable) of the party authorized by the Assignee/Transferee to sign the application. This field is optional.

This signature certifies that all information provided on both the Main Form application and any associated schedules is true and correct and that the Assignee is in compliance with all of the General Certification Statements on the Main Form and any schedules filed with the application.

After completing the Assignee/Transferee Certification Statements page, click the Next Page button at the bottom of the screen.

FCC Form 603, Schedule A, is a supplementary schedule for use with the FCC Wireless Telecommunications Bureau Application for Assignments of Authorization and Transfers of Control, FCC Form 603. Complete this schedule when the authorizations to be assigned or transferred are geographically licensed services and have been won in an FCC auction by either the assignor or a previous owner (assignments of authorization) or by the licensee (transfers of control).

Assignee Eligibility for Installment Payments (for assignments of authorization only) Refer to the appropriate FCC Auction rules and to the FCC’s rules in Title 47 of the Code of Federal Regulations (47 CFR). If the assignee is claiming the same category or a smaller category of eligibility for installment payments, enter ‘Y’, then answer the additional question about installment payments.

Gross Revenues and Total Assets Information (for assignments of authorization only) Refer to the FCC’s rules in 47 CFR. If gross revenues and total assets information is required, 47 CFR describes the methods by which this information should be computed.

Certifications for Assignees By signing the main form, FCC Form 603, the assignee certifies that the applicable statements listed in this section are true, complete, correct, and made in good faith.

Licensee Eligibility (for transfers of control) Refer to the appropriate FCC Auction rules and to the FCC’s rules in Title 47 of the Code of Federal Regulations (47 CFR). If the licensee must, as a result of the transfer of control, now claim a larger or higher category of eligibility for installment payments, enter ‘Y’ and enter the new category of eligibility.

Certifications for Transferees By signing the main form, FCC Form 603, the transferee certifies that the statement listed in this section is true, complete, correct, and made in good faith.

Assignment/Transfer

• For a Transfer of Control, click each call sign you want to transfer, or click the Select All button to select all available call signs, then click the Transfer button to move the selected call signs to the Authorizations Assigned or Transferred section.
• For a full Assignment of Authorization, click each call sign you want to assign fully, or click the Select All button to select all available call signs, then click the Full Assign button to move the selected call signs to the Authorizations Assigned or Transferred section. 
• For a partial Assignment of Authorization, click each call sign you want to assign partially, or click the Select All button to select all available call signs, then click the Partial Assign button to move the selected call signs to the Authorizations Assigned or Transferred section. 

If you accidentally move a call sign that you don't want to assign/transfer, click its name to select it and then click the Remove button to return it to the Available list.

• Use Location Num to specify which (if any) specific locations are to be assigned. Location numbers are located on FCC Authorizations.

Note: Assigning locations without specifying which specific frequencies are to be assigned for that location will result in all frequencies at that location being assigned. Use the Frequency fields to specify which (if any) specific frequencies are to be assigned.

• Use Path Num to specify which (if any) specific paths (Microwave Services only) are to be assigned. Path numbers are located on FCC Authorizations.

Note: Assigning paths without specifying which specific frequencies are to be assigned for that path will result in all frequencies on that path being assigned. Use the Frequency fields to specify which (if any) specific frequencies are to be assigned.

• Use the Frequency fields to specify which (if any) specific frequencies are to be assigned. Frequencies are located on FCC Authorizations.

List the frequencies, in Megahertz (MHz), to be assigned. Enter the center frequency, or the lower frequency of a frequency band, in Lower or Center Frequency . If applicable, enter the upper frequency of a frequency band in Upper Frequency .

• The Constructed entry indicates whether the facilities listed have been constructed.

When you have finished defining a specific authorization to be partially assigned, click the Save Call Sign button.

Submitting the Application After completing the Assignment/Transfer page, click the Submit button at the bottom of the screen. A confirmation screen will appear, indicating the system-assigned file number. If there is a fee for the application, this screen will calculate the amount due and present a Form 159 button. Refer to Submitting Application Fees for more information.

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Can a RTM Company grant consent under a lease?

28th July 2023

In this Legal Update, we look at an issue that is commonly faced by right to manage companies in circumstances where:

The RTM Company has acquired the right to manage a building; and

A leaseholder of a flat within the building wishes to do something which requires the consent of the Landlord or Management Company under the lease. That “ something requiring consent ” might be to make alterations to the flat, assign the lease, have a pet or anything else in the lease for which consent of the Landlord/Management Company is ordinarily required.  

The question then is, can and should the RTM Company grant such consent and if so, what is the process that it must go through in order to lawfully do so?

In summary, the RTM Company is the party (in place of the Landlord or Management Company) to grant consent but it must NOT, without first giving notice to the Landlord or Management Company, as the case may be, of their intention to do so.

In reaching the above conclusion, it is important to consider the statutory position in respect of the functions relating to approvals, or, in other words, consents.

The statutory position

Under Section 98(2) of the Commonhold and Leasehold Reform Act 2002 (“the Act”), upon the RTM Company acquiring the management of a building, the functions under a lease in favour of the Landlord or Management Company relating to approvals, instead, become functions of the RTM Company.

Accordingly, where a leaseholder wishes to do something that requires consent, they must first approach the RTM Company for that consent and not the Landlord or Management Company. Proceeding otherwise without consent would amount to a breach of lease enforceable by the RTM Company under s.100 of the Act and in contemplation of the Landlord’s right of forfeiture.

However, by Section 98(4) of the Act, the RTM Company cannot grant consent without having first given the Landlord or Management Company notice of their intention to do so.   The period of notice that must be given is subject to the specific type of approval being sought and which are:

In the case of an approval relating to assignment, underletting, charging, parting with possession, the making of structural alterations or improvements or alterations of use, 30 days’ notice is required; or

In any other case, 14 days’ notice .

“Any other case” would include say, a leaseholder seeking consent to have a pet in their property.

Upon notice being given to the Landlord or Management Company, they will either:

Not object;

Allow the applicable time period to lapse; or

Object to the approval.

Should no objection be raised or the time period lapses, the RTM Company may grant the consent on whatever terms it sees fit.

However, the Landlord or Management Company can raise an objection to the grant of the proposed consent. An objection might be total or merely because the Landlord or Management Company wish to impose conditions beyond those within the form of consent proposed by the RTM Company. 

If the Landlord or Management Company chooses to object, they must notify the RTM Company and the leaseholder of their reasons.   In these circumstances, the RTM Company cannot grant the consent otherwise than in accordance with the terms Landlord’s or Management Company’s written agreement or upon a determination under Section 99(1) of the Act by the First-Tier Tribunal enabling the grant of the licence.

Practice and procedure

So, when an RTM Company is faced with an application for consent under a lease, what must it do in practice in order to consider it and, if appropriate, grant consent.

Upon receipt of the application by the leaseholder for consent and prior to undertaking any work on the consent requested, the RTM Company (or its lawyers) should obtain from the requesting leaseholder fees on account * or, a the leaseholder’s solicitor’s undertaking to pay such costs, in respect of the RTM Company’s administration, legal and, if appropriate, surveyor’s fees to consider the application and, if consent may be approved, to draft a consent agreement with the leaseholder;

Following the above and upon the terms of the consent being agreed between the leaseholder and the RTM Company, the RTM Company then needs to provide 30 or 14 days’ notice, subject to the type of consent being sought (see above), to the Landlord or Management Company of their intention to grant consent upon the terms set out in the consent agreement.   A copy of the proposed form of consent must accompany the notice;

Should the Landlord or Management Company respond to confirm that they do not object to the RTM Company granting consent on the terms set out in the draft, or the applicable notice period lapses, the consent may be completed on those terms proposed by the RTM Company; however

If the Landlord or Management Company objects to the grant (wholly or on the specific terms proposed), the RTM Company may only grant consent on the terms set out with the Landlord or Management Company’s agreement or, an application must be made by the RTM Company ** or leaseholder to the First-Tier Tribunal for a determination under S99(1) of the Act to overrule the Landlord or Management Company’s decision.  

*      In terms of point 1 above, the RTM Company is entitled to seek the payment of administration charges under paragraph 1(1)(a), Schedule 11 of the Act as this covers those costs incurred for or in connection with the grant of approvals under a lease or to consider applications for such approval. Also, as a matter of general law, the RTM Company is entitled to require the payment of a reasonable sum in respect of any legal or other expenses it may incur in relation to granting consent.    Note that this is not a premium but merely a reimbursement of reasonable costs likely to be incurred.

It is worth noting that it is settled law that where a leaseholder refuses to pay the costs to be incurred in considering an application for consent, it is not unreasonable for the Landlord, Management Company or RTM Company to refuse to progress the request and so consent is not granted.

**    Whilst the application to the FTT can be made by either the leaseholder or the RTM Company where the Landlord or Management Company object to the grant of the consent, it is difficult to imagine a circumstance where the RTM Company would actually make that application (and thus incur costs in doing so) instead of just leaving it up to the leaseholder.   The usual position will be to ensure that the requesting leaseholder is aware of the objection, and thus the inability of the RTM Company to complete the consent request, and then direct the requesting leaseholder to their own advisers and leave it to them to take whatever steps they wished to take. 

Where an RTM Company exists at a building, the initial application for consent should be directed to, and is progressed only by, the RTM Company.   However, in the event that an RTM Company is content to grant consent, they must not do so without first giving the requisite notice to the Landlord or Management Company.

Our firm advice to RTM Companies and their agents is not to agree to grant any form of consent to a leaseholder in the absence of full and competent advice from both the RTM Company’s lawyers and, in the case of alterations, their surveyors. Upon receipt of an application for consent, an RTM Company and their agents alike are advised that they, themselves, should not grant any consent but simply hand the matter to the RTM Company’s lawyers to oversee the process.   Doing so will avoid the perils of getting things wrong and because it is generally the case that the leaseholder is liable in any event for the RTM Company’s costs.   See here and here for some guidance as to the issues that can be missed where a consent request is not dealt with by professional advisers.

From experience, RTM Companies and their agents, are often unaware of the requirements under the Act in respect of consents and willingly grant them without first placing the Landlord or Management Company on notice. Proceeding without giving notice, places the RTM Company in a difficult position in circumstances where the Landlord or Management Company may have otherwise refused. That may put the RTM Company at risk of a damages claim from the Landlord or Management Company and which may lead to their insolvency, placing the management of the building in a very precarious position indeed.    The “golden rule” of - if in doubt ask before acting - therefore applies.

Please feel free to contact a member of the team on 01435 897297 or [email protected] should you have any queries whatsoever.

This Legal Update describes the position in law as at the date of this article and care should be taken to note any subsequent amendments to the position as set out above.  The Legal Update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.

If you have received this update in error or wish to unsubscribe from future updates then please email us at [email protected] .

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Unreasonably withholding consent to assign a lease

How unreasonable does a landlord have to be?

Leases will usually require a landlord’s consent before a tenant can assign, sublet, or otherwise part with possession of premises. This is understandable as a landlord needs the ability to protect their interest in their premises. In the current market however, a tenant’s need for premises can change quickly and often, particularly in retail units where customer preferences and footfall are vital.

Section 19(1) of the Landlord and Tenant Act 1927 says that for all leases where there is a requirement on a tenant to obtain a landlord’s consent before assigning, underletting or in any way changing possession of all or part of the premises, consent is not to be unreasonably withheld. As a result, a landlord must always act reasonably – although reasonable doesn’t necessarily mean correctly or justifiably – just what a reasonable person would do in those circumstances. The decision must be based on the relationship of the landlord and tenant and a landlord cannot look to better their position by refusing consent.

When can a landlord refuse consent?

It may be reasonable to withhold consent if the assignee does not appear able to make the rental commitments required under the lease. A profit level of ‘three times the annual rent’ is often used as a benchmark to show that a tenant can make the rental payments. That is not a hard and fast rule though and a landlord refusing consent on the basis that a tenant’s profit levels do not meet that criteria will not necessarily be reasonable. It would be reasonable to refuse consent where the proposed assignee would use the premises for a use which would be a breach of the user covenant. Similarly, the landlord can refuse consent if it wants to maintain a good tenant mix, for example in a shopping centre. It is also reasonable for a landlord to refuse to assign a lease to an assignee who would be in direct competition with their business.

However, it is unreasonable for a landlord to refuse consent where they look to obtain a variation to the lease to improve their position as a condition of granting consent or on any grounds which are discriminatory to the proposed assignee or sub-tenant. Also, a landlord cannot reasonably withhold consent to an underletting on the basis that to do so may set a low rent comparable for forthcoming rent reviews.

Less clear cut examples are where a landlord refuses consent to sub-let due to concerns about the long term viability of the sub-tenant. The landlord’s direct covenant with the tenant remains and so the landlord’s ability to collect rent should not be affected. However, it is possible that the market will perceive the sub-letting as a reduction in the value of the property and that could affect the landlord’s reversionary interest. Similarly if the landlord refuses consent to assign or sub-let on the basis of existing breaches of covenant by the tenant, it will depend on the severity of the breaches and the likelihood of the assignee or sub-tenant to remedy them. It would be unreasonable for a landlord to refuse consent to assign on the basis of minor disrepair works, but it may be reasonable to refuse consent to assign where there are substantial dilapidations and the assignee does not appear to have the means to remedy the defects. In cases like this whether or not refusal is unreasonable will depend on all the facts in that particular case.

Timing of applications

The timing of a landlord’s response is also covered by statute. The Landlord and Tenant Act 1988 Section 1(3) states that a landlord owes a duty to a tenant to respond to any application for consent within a reasonable time. What constitutes a reasonable time will depend on each set of circumstances and it would be impossible to set down hard and fast rules. However, case law does give us some indications as to what is and isn’t reasonable. The time period will run from when a landlord receives a complete formal application from the tenant and ends when the landlord’s decision is notified to the tenant. The time period between those two will need to be as short as is sensibly possible It will be weeks and not months, but holiday periods will be taken into account as will the complexities of the deal.

Ultimately it is for the tenant to demonstrate that the landlord is acting unreasonably rather than the landlord to prove its behaviour is reasonable. As such, a tenant making a formal application needs to provide as much information as possible at the time of making the application and provide all relevant details. It will be far easier for a tenant to prove that the landlord is unreasonably withholding consent where the application included complete and comprehensive supporting information, rather than where information has been provided piecemeal and reactively.

Landlords receiving applications need to act promptly as the time limits explained above will apply once the application is made. If you are unsure whether you need to treat the communication from a tenant as a formal application for consent to assign, then ask the question. Correspondence from a tenant saying that you are out of time to withhold consent will put a landlord on the back foot – even if consent would have been granted in any event.

When considering an application to assign, sublet or part with possession, or if you are a landlord you receive one, it is worth taking advice to ensure you are aware of your rights and the likely consequences of consent being refused.

If you require any further information please contact a member of our expert Real Estate Litigation  team.

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Tenant’s Request for Consent to Assign a Lease

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GOVERNMENT OF NEWFOUNDLAND AND LABRADOR Department of Municipal Affairs Application for Consent and Notice of Assignment of Lease/Licence Lease/Licence Number: Receipt Number: Date Issued: Amount:.

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Erections FAQ

How do i transfer crown land in newfoundland.

Transfer Crown Lands All lease/licence rental fees must be paid up to date. An assignment application fee of $200.00 must be paid through the Central Cashiers Office at (709) 729-3042. All signatures must be witnessed by a person authorized to witness a signature.

How does Crown land work in Canada?

Crown land is land (or land covered by water like rivers or lakes) that is owned by the provincial government. This type of land is available to the public for many different purposes – from industry to recreation and research.

How do I claim Crown land in Newfoundland?

Email at [email protected]; • The nearest Crown Lands Regional Office; or • Mail. Applications for Crown Lands are reviewed on a first-come, first-served basis. Applications must be completed in full to be accepted. Multiple requests for the same Crown Lands may initiate a public draw process.

Can Canada sell Crown land?

For example, Crown land may be sold: to a municipality, agency, non-profit group, or community organization when a public benefit can be demonstrated. to support or promote economic activity when all other reasonable alternatives have been canvassed by the applicant.

What happens to Crown land in Canada?

Crown land is used for such things as airports, military grounds (Commonwealth), public utilities (usually State), or is sometimes unallocated and reserved for future development.

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Application for landlord’s consent to assign

Published by a lexisnexis property expert.

[ To be printed on headed paper of Tenant’s solicitors ]

Dear [ name ]

Lease of [ description of premises ] (the Premises) dated [ date ] and made between (1) [ name of landlord ] [ , OR and ] (2) [ [ name of Tenant ] OR [ name of original tenant ] ] [and (3) [ name of guarantor ]]

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