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Tenant advocates need to carefully review the assignment and subletting clause within the lease and be aware that at best, most well-crafted assignment and subletting clauses will frame the landlord as somewhat of a democratic dictator, wherein the landlord essentially has the power and complete control over how, if, and when an assignment or sublease will be effectuated and, if one occurs, the terms under which the landlord will benefit as a consequence thereof.
In the assignment and subletting clause, tenants and landlords should address tenant’s recapture and leaseback rights.
Wherever possible, a landlord should severely limit or delete language granting the tenant the right to sublet its space or assign its lease without landlord’s consent.