To protect the tenant in such a case, leases commonly allow the tenant to sub-let the premises, but, to in turn protect the landlord, this should only be possible with the landlord’s specific written consent. 

If you are a tenant, check that the landlord cannot withhold such consent “unreasonably” - otherwise the landlord effectively has carte blanche to refuse. 

Landlords thus constrained need to understand what will be considered “reasonable” grounds for refusing consent, and what will be considered unreasonable.  The starting point is that the law views the reason for the landlord’s right of veto as being ”to protect the lessor from having his premises used or occupied in an undesirable manner or by an undesirable sub-lessee.”  Thus, held the High Court in a recent case, the landlord’s reason will generally be unreasonable if it does not relate either to –

• The sub-tenant, or

• The “proposed use or occupation of the premises”.

In the case in question, the landlord refused to consent to a night club sub-leasing premises in its shopping centre.  The Court held that the landlord was obliged to consider whether the club could be accommodated “without prejudicially affecting the rights of the other tenants and its obligations towards those tenants”.  The landlord was found to have acted reasonably in refusing consent on the basis of probable impacts on parking availability, noise levels, unruly behaviour etc.

Note that a “sub-lease” should not be confused with an outright cession of the lease to a new tenant.  With a sub-lease, the tenant remains just that – the tenant - and therefore remains fully liable for compliance with the original lease.  With a cession, the original tenant falls out of the picture, being replaced by the new tenant.  Take advice if it isn’t clear which option suits you best.