Consent to a sublease

A subsubtenant sued its sublandlord, seeking damages and the return of
her property after the sublandlord allegedly forcibly removed [the
subsubtenant] from, and took possession of, her massage therapy
business. The sublandlord sought to have the suit dismissed.
Originally, a businesswoman had bought the sublandlord's massage
business and then subleased the premises. Those premises had been
leased by the sublandlord from a real-estate company. The record did
not show whether the sublandlord needed the owner's permission
before making the sublease agreement. The businesswoman then resold the
massage business to the subtenant who thereafter took possession of the
premises, [and] began renovations and conducted business therein.
The sublandlord claimed that the subtenant took possession of the
premises without her knowledge, and the businesswoman's husband
admitted that he sold the business to the subtenant without the
sublandlord's consent or knowledge. Thereafter, the subtenant
claimed that she paid rent directly to the lessor. Later, the subtenant
and the businesswoman each received a letter from the sublandlord
purporting to terminate the original sublease agreement between the
sublandlord and the businesswoman. The subtenant claimed that about
three months after receiving that letter, the sublandlord "and
others arrived at the premises and forcibly removed" the subtenant
from the store and discarded certain of her property.
Park v. Timber Creek Plaza, LLC 02-4929 (U.S. Dist. Ct. D. N.J. 2005)
(Unpublished) February 22, 2005 The subtenant alleged that the
sublandlord deprived her of her property without due process of law in
violation of the 14th Amendment of the Constitution. The District Court
dismissed that claim since "deprivation of property without due
process of law requires a showing of state action and the subtenant
failed to show that the sublandlord had exercised power "possessed
by virtue of state law and made possible only because the wrongdoer
[was] clothed with authority of state law."
The Court held that, in New Jersey, in order to recover under a claim of
forcible entry and detainment of property, the claimant must make a
showing of legal actual possession at the time of entry... as well as a
showing of legal entitlement to actual possession - although title to
the property is not required. The sublandlord argued that the subtenant
was not legally entitled to possession of the premises since she was not
a named party to any contractual agreement found in [the] record and
since she subleased the premises without the sublandlord's knowledge
or consent, thereby violating the terms of the original sublease between
the sublandlord and the businesswoman, thereby voiding the
businesswoman's sublease agreement with the subtenant. The Court
rejected this argument, finding that the businesswoman's
"failure to secure the permission of [the sublandlord] prior to
subleasing the premises would not by itself void that agreement"
since it is generally accepted that lessees may transfer their leases
despite restrictions in the lease against doing so.
Thus, the Court held that any sublease agreement entered into by [the
businesswoman] was not void ... for failure to obtain the
sublessor's consent. Additionally, the Court found that a dismissal
of the subtenant's claim would be improper since a reasonable jury
could conclude, based on the facts ... that [the subtenant] was in
actual legal possession of the premises on the date of the alleged
incident.
This conclusion was supported by the fact that the sublandlord entered
into a second sublease with the businesswoman in what appeared to be an
effort to circumvent the subtenant's entitlement to the premises
after the sublandlord and the businesswoman entered into their sublease
agreement. The Court likewise rejected the sublandlord's contention
that an unwritten commercial sublease is void since the rule had since
been changed. Finally, the Court held that since each party gave
dissimilar accounts of what had occurred, it was more proper for a jury
to resolve those factual disputes.
The subtenant sought damages for wrongful distraint, which the Court
referred to as the `seizure of another's property to secure the
performance of a duty, such as payment of overdue rent.'
The sublandlord argued that the Court had no evidence that the subtenant
owned any of the property distrained and, thus, [was] not entitled to
any damages. The Court agreed and dismissed the subtenant's
conversion, trover, and wrongful distraint claims since her evidence on
the issue of ownership was a mere scintilla and [was] not significantly
probative."from www.meislik.com <http://www.meislik.com
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or www.houstonrealtyadvisor.com





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