Get Reminders to Respond to Consent Request if Your Silence Equals Consent

Many of your leases probably have clauses that require the tenant to get your consent. For example, the sublet/assignment clause may require the tenant to get your prior consent to a sublet or assignment. And the alterations clause may require your consent before a tenant can make alterations to its space. When negotiating these clauses, tenants often demand that the lease set a deadline for you to respond to its request. But a savvy tenant may go one step further. It may demand that the lease say that if you don't respond by the deadline, your silence will be treated as—in legal terms, “deemed”—consent. The tenant will argue that without this deemed consent language, it could be left in limbo—not knowing if you've consented to or rejected its request, or what course it should take with a proposed sublet, assignment, or alteration.

Agreeing to include this deemed consent language in your lease is dangerous. If you forget to respond by the deadline, you could end up consenting to an undesirable subtenant or assignee, or to an alteration that you didn't intend to allow.

To avoid those dangers, require the tenant to remind you twice about your deadline for responding to its consent request, says New York City attorney Nancy Ann Connery. That way, you'll be less likely to forget to respond.

There's a Model Lease Clause at right that you can adapt and use in your lease, that requires these reminders.

Get Two Reminder Notices

Have your lease set the following two notice requirements if a tenant demands that your silence be deemed consent, says Connery. And say in the lease that if the tenant fails to meet these two requirements, your silence won't be deemed consent, she adds [Clause, par. c].

Reminder in consent request. Require the tenant to remind you in its consent request that you must respond by a set deadline, says Connery [Clause, par. a]. Often, this should be enough to spur a response from you.

Reminder after deadline. Also require the tenant to send you a second reminder notice if you miss the deadline to respond, Connery advises. This notice should inform you that the deadline has passed, she says [Clause, par. b(i)]. You should also get an additional few—say, five—days to respond, she adds. And make the tenant include a statement on the front of the notice—in bold, capitalized letters (to grab your attention)—on the consequences of not responding by the new deadline, she advises [Clause, par. b(ii)]. That lessens the risk that you'll overlook the reminder, mistaking it for junk mail.

CLLI Source

Nancy Ann Connery, Esq.: Partner, Schoeman, Updike & Kaufman, LLP, 60 E. 42nd St., New York, NY 10165; (212) 661-5030.