58When landlords can withhold consent to assignments

58 When landlords can withhold consent to assignments

(1)  A landlord is only entitled to withhold consent to the assignment of a retail lease if any one or more of the following applies:

(a) the proposed assignee proposes to use the retail premises in a way that is not permitted under the retail lease;

(b) the landlord considers that the proposed assignee does not have sufficient financial resources or business experience to be able to meet the financial obligations of the tenant under the retail lease;

(c) the proposed assignor has not complied with the reasonable assignment provisions of the retail lease.

(2)  This section does not preclude the right of a landlord to –

(a) recover from the tenant a reasonable sum in respect of legal or other expenses incurred by the landlord in connection with the consent to the assignment of a retail lease, so long as the landlord has substantiated those expenses to the tenant at the request of the tenant; or

(b) recover from the tenant costs which the landlord reasonably incurred in connection with –

(i) an assignment of a retail lease; or

(ii) obtaining any necessary consents to the assignment; or

(c) recover from the tenant costs which the landlord reasonably incurred in investigating a proposed assignee of the retail lease.

(3)  Despite this section, a retail lease may contain a provision which gives the landlord an absolute discretion to consent to, or to refuse to consent to, a sublease of the retail lease.