Don’t assume knowledge of a violation of a lease provision will allow you to avoid eviction. A recent NJ decision involving a commercial landlord and tenant is significant, in part, because it originates from the Appellate Division and therefore it is binding statewide. The Court considered a judgment entered by the lower court for possession in favor of the landlord. The lease specifically prohibited the tenant from assigning or subletting any portion of its space and the adjacent exterior parking space without the written consent of the landlord. The landlord alleged that the tenant subleased part of its space to an unrelated third party business without its knowledge or consent. The tenant alleged that the landlord knew that the third party was an unrelated business co-occupying the space since the beginning of the lease and therefore, was chargeable with knowledge of the lease and thereby waived the enforceability of the “no-subleasing or assignment” provision in the lease. The Court ruled (based on the facts of the case), that the landlord was entitled to evict the tenant for a material breach of the lease by failing to get his permission to sublease or assign this space.
This case stands for the proposition that if a lease requires that the tenant or landlord give notice or perform an affirmative obligation in writing, each side better be able to prove that written notice was given to other.
For more information on this decision, contact Christopher Hanlon at chanlon@www.hnwlaw.com/.