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O we usually think of a partial assignment or a

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oWe usually think of a partial assignment or a partial sublease in a commercialcontext where we can divide the actual premises.HOWTOTELLTHEDIFFERENCEBETWEENANASSIGNMENTANDASUBLEASETwo ways of determining:oTransfer of whole interest yield assignment150
oAttempt to discover intent of parties (intent test)The traditional way is to say:what is left?If I transfer everything that’s left, then wegenerally think of it as an assignment. The traditional rule is that If I’ve given everythingway, then I have an assignment.But some jurisdictions say that may be too easy, so let’s look at what the parties actuallyintended. It is possible that I could have given you the last 3 months of my lease, but ourintention was that it was not an assignment, but rather a mere sublease [why that isimportant will be clear soon].Thus, one way to look at is to just say it’s mathematical: how much is left? If I gave everybit of it away, it’s an assignment. Another way to look at it is: just what are the partiesactually doing here? The consequences is what matters.CONSEQUENCESOFEACHIf sublease:oNo privity of contract between subtenant and landlordoSubtenant not liable for defaults to landlord on part of sublessoroOriginal tenant remains liable to landlordIf assignment:oPrivity of contract between subtenant and landlord with right of landlord to proceedagainst subtenantoOriginal tenant has no further obligationsIf it’s an assignment, I basically walk away. I leave and the new tenant (the assignee of thelease) jumps into my shoes. Everything I owed the landlord, the new tenant now owes. Andif something goes wrong, the landlord does not come against me, he comes against theassignee. Thus, there is a relationship between the two. Basically, I’ve left, he’s moved in,so deal with him!On the other hand, a sublease does not destroy that relationship which we call “privity”between the landlord and the original tenant. The landlord in a sublease will say that hedoesn’t deal with the subtenant. For example, you leased your apartment for the 3 monthsduring summer. If that subtenant doesn’t pay the July rent, that landlord doesn’t contactthe subtenant, he contactsyoubecauseyou’rethe tenant. The landlord doesn’t know himand doesn’t care about him, he deals with the tenant because he’s responsible, it’s hislease. The landlord says: you pay me or I’m going to evict him and you. The tenant is liablefor the default of the subtenant. In other words, the original tenant remains liable, there isstill a relationship between them.Depending on who you are in the relationship, you might want an assignment or a sublease(from the tenant’s perspective).Example: you’re moving to Chicago. You don’t want to worry about this apartment inToronto anymore, you want to assign it, you want to walk away and you want the newtenant to deal with the landlord and if he doesn’t pay the rent, you don’t care, you don’tever want to hear from him again. You want that. If however you want your apartment backin September because you’re only away for the summer, you’re likely going to have to do asublease which means over the course of the summer, you are going to have to make surethat your subtenant pays the landlord OR you are going to have to pay the landlord andchase your subtenant (that’s the price you have to pay in order to get somebody in thereduring that period of time).

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Term
Fall
Professor
Matthew Harrington
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