Tenants will need to obtain their landlord's consent for various actions, such as underletting or assigning their lease, or carrying out alterations to their premises. It is important for both parties to understand their rights and obligations in these circumstances, which will be set out in the lease and often also implied by legislation. Given tenants will be keen to obtain consent to carry out their plans as quickly as possible, it is also important that the correct process is followed from the outset, to avoid wasting time.
1. Check the lease
Most commercial leases will set out the tenant's rights and the landlord's express requirements for granting consent. Tenants should ensure that they have or can satisfy any pre-conditions to obtaining consent, and include confirmation in any application to the landlord. Equally, both parties must understand the scope and limitation of the tenant's rights and the landlord's entitlement to withhold consent.
2. Check the parties
Whilst obvious, it is important to ensure that request for consent is sent by and to the correct parties. So, notice must be given by or on behalf of all joint tenants together, and should be served on the current landlord. As well as any specific requirements in the lease, it is good practice to also provide the consent application on any appointed managing agents.
3. Provide all necessary information
Landlords must be provided with adequate information to enable them to determine whether consent ought to be granted. For example, on an application for consent to assign a lease, a landlord should be provided with details of the proposed assignee's financial position, and where a tenant wishes to make alterations, details of the works such as appropriate plans must be provided.
4. Comply with technical requirements
Lease often contain specific requirements for serving written notices, and may require a formal or written request for consent. It is worth considering whether the interpretation clause in the lease excludes email where a written request or notice is required; if so an email request for consent will often not be sufficient. If the request for consent is not made in accordance with the lease, the landlord may not be under any obligation to respond within a reasonable time or at all.
5. Act promptly
Landlords must act promptly when an application for consent is received. The lease may expressly state that consent should not be unreasonably withheld or delayed, but even if here is no such express statement, a landlord must be live to the obligations imposed by statute to give consent within a reasonable time. A "reasonable time" will vary depending on the facts and circumstances for each application, however it is generally accepted that the period will be a matter of days or weeks, rather than weeks or months.
If you have any queries in relation to an application for landlord consent, or anything else related to real estate matters, please do not hesitate to get in touch with our Real Estate Disputes team or your usual Brodies' contact.