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Three Approaches Used by Attorneys When Drafting Sub-Leases



There are countless reasons why an individual or a business entity would enter into a sub-lease of a property. Whether one is moving-in or moving-out, there are numerous legal implications that must be addressed prior to signing a sub-lease agreement. In general, attorneys use three approaches in drafting and reviewing sub-leases, namely: the All-Inclusive Approach, Incorporation by Reference, or the Haphazard Approach.


The "All-Inclusive" Approach is when an attorney will build an entirely new lease but utilizes the prime (original) lease as a reference. Meaning, in drafting the new lease, the attorney is addressing all the rights and obligations of the three parties involved (original lessor, original lessee now the sub-lessor, and the sub-lessee).


The "Incorporation by Reference" Approach is when the attorney incorporates the entire original lease into the sub-lease. Meaning, the original or prime lease is used as the basis of agreement except for any provisions or terms that are expressly excluded or qualified by the sub-lessor and sub-lessee. This approach assumes the validity of the original or prime lease but also qualifies what obligations remain with which party.


The "Haphazard" Approach is when an attorney changes the lease form to say sub-lessor and sub-lessee and inserts new terms, such as prohibiting each party from causing default under the primary lease. In this approach, the parties are left wondering what the consequences or even the agreement really is.


Although the three approaches laid out above seem to be rudimentary and easy for anyone to apply, they assume an attorney level education and experience that one cannot take for granted. If one were to only look at the terms of a lease, one can see the legalese runs rampant, making the consequences widely unknown for breaches to the ordinary person. Thus, an individual must not take any provisions of a lease lightly, as the legal consequences vary and could cause permanent harm to the individual or business entity. Be sure to consult a qualified attorney for your lease and sub-lease issues prior to signing the document.


If you have any questions regarding leases or subleases of real estate, please contact Joseph Marriott at joseph@qtsnola.com or (504)834-7171.



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