Sublease agreement for commercial property: landlord involvement

This sublease includes optional provisions that give the head landlord additional rights when dealing with the subtenant. It can be used to sublet part of or the whole of any commercial property, including offices, shops, industrial units such as factories, warehouses and workshops, and land. Features: new guarantor; release of old guarantor; break provision; rent review options; drawn for the property owner or experienced property professionals.

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About this sublease agreement

Sometimes a landlord may allow subletting, but require further restrictions or obligations on the subtenant. The most useful of these is the ability to "bypass" the sublessor and deal directly with the subtenant if necessary. By setting these terms, the head landlord can proceed without the necessity of establishing the default of the sublessor in court.

When someone wants to litigate, nothing can be certain. But the sublessor cannot sign to this sublease then later deny these rights of the head landlord.

Your sublease can follow or deviate from the terms of the original lease as much as you like. You could carve out the sublease from the head lease with the same terms, or alternatively, specify different terms and impose further obligations on the new tenant.

Typically, this document would be used by the head landlord (perhaps in conjunction with the original tenant) to sublet:

  • the whole of a property to a single new tenant so that the original tenant is effectively replaced by the new subtenant;
  • part of the property to a subtenant, while the original tenant continues to occupy the rest of the property;
  • the whole property, split into separate units, to multiple tenants (perhaps at relatively higher individual rents so that the original tenant profits).

This agreement is suitable for any commercial property including office buildings, shops and retail units, industrial units such as workshops, warehouses and factories, and even land. Because subleases deal with legal issues in the round, the form of sublease required for a shop on the high street is not different from the form required to sublet a scrap yard.

If you are subletting only part of the property you will need to look afresh at how responsibilities such as service provision, access, insurance and so on are split between the head landlord, you the sublessor and your subtenants. We provide for many different possible options. This is a very flexible document.

The sublessor should first check the original lease. Subletting may be allowed and if so, the permission is likely to be subject to specific conditions. If not allowed, it may be possible, with the landlord's consent, incorporate terms in favour of the head landlord in return for allowing subletting.

Key features

Plain English is used throughout except where it is necessary to use legal terms common in land law.

The key features of this template can be summarised as:

  • sub guarantor and variation of the obligations of the original guarantor;
  • provision for premature termination: break clause;
  • rent review options.

This sublease is one of a collection of commercial lease templates designed for use by property professionals: experienced landlords, solicitors and surveyors. Accordingly, the provisions are very thorough.

The document includes the (optional) provision to release the old guarantor from his obligations as the new guarantor takes over.

The law in this sublease

Business lease law is regulated primarily by the Lease of Land Act 1969. A lease of up to ten years does not have to be registered. If the term of this lease is longer than ten years it must be registered at the Deed Registry Office. A sublease carved out of a registered head lease should itself be registered.

Alternatives to this document

We offer two subleases. This version has been drawn for circumstances where the head landlord requires deeper and more detailed involvement in the relationship between himself and the new subtenant. If you don't need these provisions, you may be interested to look at: Underlease agreement for commercial property.

Note that this document is not suitable for subletting residential tenancy agreements. In those situations, we recommend cancelling the original and using a new tenancy agreement to let the property to the new tenants.

Sublease agreement contents

The template is comprehensive at 27 pages excluding guidance notes. Contents include:

  • the sublease
  • relationship of head landlord to subtenant
  • rent: amount, other payments, interest on overdue rent, periodic review
  • subtenant's obligations: follows the original tenant's obligations in the head lease
  • optional additional obligations not set in the head lease: condition and repair; subtenant's positive obligations; restrictions on the subtenant
  • assignment of the sublease
  • indemnities by the subtenant to the sublessor
  • security deposit
  • insurance
  • access for sublessor
  • release of the original guarantor under the head lease
  • new guarantor(s)
  • termination: default notice by sublessor, provision for premature termination
  • forfeiture
  • obligations at the end of the sublease
  • other matters
  • Schedule 1: Rights expressly reserved
Draftsman

This document was written by a solicitor for Net Lawman. It complies with current South Africa law.

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