The last document anyone reads
A business sale runs on a predictable rhythm. Broker or banker, offering memo, letter of intent, then diligence: financials, tax returns, payroll, licenses, contracts, litigation. The lease usually surfaces somewhere in week four, when a paralegal on the buyer's side asks for a copy and nobody has read it since the day it was signed six years ago.
That is late. The lease is frequently the second most valuable thing in a small business sale after the cash flow itself, and it is the only asset in the deal that a third party with no stake in your outcome can refuse to hand over. Your landlord did not agree to your exit. They agreed to a lease with you.
If you are planning to sell a business that operates from leased space in Broward, Miami-Dade, or Palm Beach, read the lease first, not fourth.
Selling the company is not a way around the assignment clause
Owners often assume the structure of the sale settles this. It does not, and the reasoning goes in two directions.
In an asset sale, the buyer takes the equipment, the goodwill, the name, and the contracts, and the lease has to be assigned to the buyer's new entity. That is an assignment on its face and it triggers the consent requirement, plainly.
In an equity sale, the buyer buys your LLC membership interests or your shares. The tenant entity on the lease never changes, so the instinct is that nothing has been assigned. Most modern commercial leases close that door directly. They define a transfer of a controlling interest in the tenant, or a change in the persons controlling the tenant, as a deemed assignment requiring the same consent. Some go further and treat a change in the ownership of the guarantor the same way. A handful make an unconsented change of control an event of default outright.
So read the assignment section all the way to the end. The change-of-control sentence is usually the third or fourth one in and it is the sentence that decides whether your deal structure has bought you anything.
Consent is the one moment your landlord has leverage over you
For the whole term, your landlord's practical power over you is limited. They collect rent, you occupy space. The consent request flips that, briefly. For a few weeks they hold something you need and cannot get anywhere else, on a deadline set by somebody else's closing date. Landlords know exactly what that is worth.
Expect some combination of the following, and understand that most of it is normal rather than predatory:
- Financial statements, tax returns, and a resume from the buyer, plus their operating history in your business category.
- A new personal guarantee from the buyer's principals.
- Payment of the landlord's legal and administrative costs, sometimes as a flat transfer fee.
- Confirmation that no default exists, which means any open maintenance or reconciliation issue must be cleaned up first.
- An increased security deposit, particularly where the buyer is thinner than you were.
- An estoppel certificate confirming the lease terms and that nothing is owed.
Two items on the wish list are worth pushing back on. Some leases give the landlord a share of the consideration attributable to the lease, sometimes half of any premium. Some landlords use the consent moment to ask for a rent increase, or to delete a renewal option, in exchange for signing. Whether either is available to them is a matter of what your lease says, and if the answer is unclear you want a Florida real estate attorney on it early rather than the week of closing.
Recapture is the clause that actually kills sales
The single most dangerous provision in this whole area is the landlord's right to respond to an assignment request by terminating the lease and taking the space back.
It is common, it is enforceable when it is written into the lease, and it exists precisely for the situation you are in. Think about the incentive. Across 721 recorded retail transfers in Miami-Dade between 2021 and 2026, the median price was $454 per square foot, and the annual medians moved from $358 in 2021 to $511 in 2025. Those are recorded sale prices, not rents, but they describe an ownership base whose assets have repriced substantially over the period you have been sitting on a lease signed years ago. A landlord holding a below-market lease with four years left has one clean opportunity to reset it, and your consent request is that opportunity.
If your lease has a recapture right, the buyer's counsel will find it, and it becomes a diligence risk that either delays your closing or prices it. Know before you go to market whether it is in there.
The question that surfaces the week of closing
Here is the one that costs sellers real money, and it is almost always discovered too late: an assignment does not release you.
Absent an express written release from the landlord, the original tenant generally remains liable on the lease after assignment, and the original guarantor generally remains on the guarantee. You sold the business, handed over the keys and the customer list, and kept the personal exposure for a lease you no longer control, operated by someone whose judgment you do not get to supervise.
It gets less comfortable. Most guaranty forms are drafted so the guarantor consents in advance to amendments, extensions, and modifications of the lease without notice. Whether that language reaches an amendment the buyer signs years later is a legal question with real stakes, and it is exactly the sort of thing a Florida real estate attorney should be evaluating on your behalf before you sign the consent. I negotiate these terms as a broker; I am not a lawyer, and this is not legal advice.
What I would ask for, in order of preference:
- A full release of the assignor and the guarantor, delivered as part of the consent. Ask first, plainly, and ask early.
- A release that takes effect on performance, for instance after the assignee has paid on time for twelve or twenty-four consecutive months.
- Liability frozen as of the assignment date, so no future amendment, expansion, or extension signed by the buyer can enlarge what you owe.
- A dollar cap on the surviving guarantee, and a written outside date after which no claim can be brought.
- An indemnity from the buyer, which is worth exactly what the buyer is worth and should never be the only protection you rely on.
If you want the background on how these documents are built, my post on negotiating a personal guaranty covers the structures a landlord will and will not accept.
What this does to your sale price
Buyers are not sentimental about location either. A lease affects the price they will pay in four ways.
Remaining term. Eighteen months left with no options is a discount. The buyer is underwriting a business that could be homeless, or repriced, before their investment pays back. Buyers financing an acquisition also get asked hard questions about lease term by their lenders, in my experience, and a short lease can complicate the financing rather than just the price.
Option structure. Options at a defined rent or a defined escalation are worth far more to a buyer than options at fair market value with no mechanism for resolving disagreement. An undefined option is a repricing risk wearing the costume of a protection.
Rent relative to market. A below-market lease is a genuine asset in the sale, and a buyer will pay for it if they can be confident of getting it. That confidence comes from the assignment clause, which is why the clause is worth money to you.
Consent risk. A hostile or unreachable landlord, a recapture right, or a profit-sharing provision all show up in diligence as uncertainty, and uncertainty in a business sale converts to either a price reduction or an escrow.
Fix the lease before you go to market
The version of this that works is boring. Nine to twelve months before you plan to sell, treat the lease as an asset to be improved rather than a document to be produced on request.
Extend the term or exercise an option so the buyer inherits runway, using the same approach as any other renewal negotiation. My guide to renewals in South Florida applies here with one difference: you are negotiating for a buyer's benefit, so length and assignability matter more than squeezing the last dollar out of the rate. If the assignment clause is bad, ask to amend it while you still have something to trade, which is term. And handle guaranty release language as a business point at the front of the conversation, the same way it belongs at the front of a new deal in the letter of intent rather than in a redline at the end.
If you own the building your business occupies, you are selling two assets and the lease between them is something you get to write. That is a much better position, and it starts with knowing what the real estate is worth on its own, which is what a broker opinion of value is for.
Either way, do it before the buyer's paralegal asks for the lease. Once there is a signed LOI and a closing date, every request you make of your landlord is made from the weakest position you will ever occupy. If you are working through this now, my tenant representation practice deals with the lease side of business sales regularly, and the review costs you nothing.
Frequently Asked Questions
Do I need landlord consent to sell my business?
Almost certainly, if the business operates from leased space. An asset sale requires assigning the lease, which triggers the consent clause. An equity sale usually triggers it too, because most modern leases define a transfer of a controlling interest in the tenant as a deemed assignment. Read the assignment section to the end; the change-of-control sentence is easy to miss.
Can I avoid the assignment clause by selling my LLC instead?
Usually not. Landlords anticipated that structure. Most commercial leases treat a change in the persons controlling the tenant entity as an assignment requiring the same consent, and some treat a change in the guarantor's ownership the same way. A few make an unconsented change of control an outright default. The deal structure rarely solves the consent problem on its own.
Am I still liable on the lease after I assign it?
Generally yes, unless the landlord signs an express written release. The original tenant typically remains liable on the lease and the original guarantor typically remains on the guarantee after assignment. That means you can sell the business and keep personal exposure for a lease someone else now operates. Ask for a release as a condition of granting consent.
What is a recapture right and why does it matter to a sale?
It lets the landlord respond to an assignment request by terminating the lease and taking the space back rather than approving your buyer. It is common and it exists for exactly this situation. If your rent is below market, the landlord may prefer the space empty. Find out whether your lease contains one before you go to market, not during diligence.
How does my lease affect what a buyer will pay?
Four ways: remaining term, option structure, rent relative to market, and consent risk. A short lease with no options is a discount because the buyer is underwriting a business that could be repriced or displaced. Below-market rent with a clean assignment clause is an asset. Recapture rights and profit-sharing provisions read as uncertainty, which becomes a price reduction.
What can a landlord charge me for consenting to an assignment?
Commonly their legal and administrative costs, sometimes as a flat transfer fee, plus an increased security deposit if the buyer is weaker than you. Some leases go further and give the landlord a share of any premium attributable to the lease. Whether that applies depends on your specific language, which is worth having a Florida real estate attorney review early.
When should I start dealing with the lease before selling?
Nine to twelve months out. That is enough time to extend the term, improve the assignment clause, or negotiate guaranty release language while you still have something to trade, which is lease term. Once you have a signed letter of intent and a closing date, every request you make of your landlord comes from your weakest possible position.
