Question: A real estate brokerage firm has been the sole tenant of a small office building in the Scottsdale Air Park. Due to the weakening real estate economy, we were able to sub-lease three office spaces from this real estate brokerage firm four months ago. Under the commercial property lease between the owner of the office building and the real estate brokerage firm, the owner was required to consent in writing to this sub-lease. We have a copy of this written consent signed by the owner. The real estate brokerage firm is now delinquent on the rent, and the owner has instituted eviction proceedings. The owner does not want to honor our sub-lease because the owner wants to find a new tenant who will lease the entire office building. Do we have any right to stay in this office building if the real estate brokerage firm is evicted?
Answer: Probably not. Any sub-tenant under the lease, or any assignee of the lease, basically “stands in the shoes” of the tenant. Therefore, if the landlord is entitled to evict the real estate brokerage firm for delinquent rent, then you also will be subject to eviction. Although the owner consented to the sub-lease to you, unless there was a novation, i.e., new contract, (“nova” is Latin for “new”) between you and the owner regarding the three office spaces, you have no right to enforce against the owner of your sub-lease. You would, however, have a claim against the real estate brokerage firm for breach of your sub-lease.