Recapturing Space from Tenant Wishing to Sublet

Q A tenant has asked for permission to sublet its space to a third party. Our lease contains an assignment/subletting clause that allows me to deny the tenant's request and to recapture the space. In this case, I would prefer to recapture the space that the tenant proposes to sublet, instead of allowing the tenant to sublet it. What procedures should I follow to do so?

A You should send the tenant a detailed notice of your decision to exercise your recapture right, says Marc L. Ripp, senior associate attorney and general counsel at Mack-Cali Realty Corporation in Edison, N.J. Ripp has developed a Model Notice for this purpose (see box on p. 2). The notice enables a commercial property owner to invoke its recapture rights and gain possession of the tenant's space. The Model Notice covers a variety of important issues—such as timing, the consequences of any delays, the physical condition of recaptured space, and the return of the tenant's security deposit. You can adapt the Model Notice to include other recapture rights that may apply to your situation. Show this Model Notice to your attorney before using it.

Insider Source

Marc L. Ripp, Esq.: Senior Associate Attorney and General Counsel, Mack-Cali Realty Corp.; Edison, NJ