Most leases prohibit assignment without L’s consent. But, as is well-known, it is very easy for L to inadvertently give consent. This is well illustrated by Alchemy [2008], where L’s solicitors sent an e-mail saying:

‘Please note that this correspondence does not constitute the provision of consent by our client. Such consent will only be provided on the completion and delivery of a formal licence executed as a deed. Please also note that our client reserves the right to change the form of the draft licence submitted herewith and to impose new conditions to the grant of their licence in light of any further information received in relation to this matter.’

Frankly, it is difficult to see how the solicitor could have made it any clearer that the e-mail was not intended to grant consent. Despite this, the High Court decided that the e-mail did amount to consent with the judge saying ‘in my view, the expression... of L’s consent in principle, subject to certain conditions, satisfied the relevant test... it was consent which was expressed to be subject only to reasonable conditions, and was unequivocable’.

Needless to say, the clear message is that everything possible should be done to negate any implication of L inadvertently giving consent. All correspondence should be qualified and make it clear that a formal deed is required. For solicitors, it is important to have a clear declaration that you are not authorised to bind the client (eg ‘please note that we have no authority, express or implied, to give or sign a consent on behalf of our client’).

The best solution, of course, lies in the wording of the lease. To side-step the dangers of inadvertently giving consent, many standard leases now contain provisions saying that assignment is only permitted once L has granted consent by completion of a formal deed. For instance, Dechert says:

‘Any consent or approval of the L under the lease shall only be valid if given by deed unless the L has by express written waiver dispensed with the requirement for a deed in any particular class or class of cases.’

Source: Dechert.