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Real Property • Landlord-Tenant
PROP#092
Legal Definition
When a landlord is aware of the assignment and does not object, they waive the covenant. Once the landlord consents to one transfer, he waives the covenant as to future transfer unless he expressly reserves it.
Plain English Explanation
The law cares a lot about what parties agree to in writing, but it does not overlook how parties actually act. Thus, if a landlord's lease says "Assignment is absolutely, 100%, completely prohibited," the law expects the landlord to act accordingly when they find out that an assignment has been made. If a landlord knowingly ignores an assignment, the law will consider the original prohibition waived.
Similarly, if a lease contains a prohibition on assignments but the landlord consents to an assignment, the prohibition will be waived against all future tenants unless the landlord expressly makes it clear that it was a one time exception.
Similarly, if a lease contains a prohibition on assignments but the landlord consents to an assignment, the prohibition will be waived against all future tenants unless the landlord expressly makes it clear that it was a one time exception.
Hypothetical
Hypo 1: Amy leases Blackacre from Bob. In the lease, there is a covenant prohibiting all assignments. Amy assigns her lease to Carl. Carl continues to pay Bob rent and Bob says nothing. Later, when Bob gets mad at Carl, he sues Amy for violating the lease's prohibition on assignment. Result: Too bad for Bob, because his failure to originally object to Carl taking over the assignment from Amy means that he has effectively waived that prohibition and cannot now sue Amy for breaking it.
Hypo 2: Amy leases Blackacre from Bob. In the lease, there is a covenant prohibiting all assignments. Amy assigns her lease to Carl. Bob finds out, but he says, "I'll allow it because I like Carl, but know that the prohibition is still in effect going forward." Months later, Carl assigns his interest to Dan. Bob sues Dan for breaching the covenant not to assign his interest. Result: Bob may have consented to Amy's assignment to Carl, but he reserved his right to prohibit future violations of the covenant, which Carl committed when he assigned the lease to Dan.
Hypo 2: Amy leases Blackacre from Bob. In the lease, there is a covenant prohibiting all assignments. Amy assigns her lease to Carl. Bob finds out, but he says, "I'll allow it because I like Carl, but know that the prohibition is still in effect going forward." Months later, Carl assigns his interest to Dan. Bob sues Dan for breaching the covenant not to assign his interest. Result: Bob may have consented to Amy's assignment to Carl, but he reserved his right to prohibit future violations of the covenant, which Carl committed when he assigned the lease to Dan.
Visual Aids
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