This post uses hypothetical scenarios for illustrative purposes only. It does not describe any actual client, transaction, or representation, and is not legal advice.
A common Florida deal pattern looks like this: a buyer agrees to purchase a twelve-year-old restaurant, or a gym, or a marine supply store — an asset deal, because that’s how main-street businesses change hands. The purchase price is built on the location. The corner, the parking, the foot traffic, the twelve years of customers who know where the door is. Strip the location out and the buyer is paying six figures for used equipment and a phone number. Which means the single most valuable thing being transferred at closing is not on the asset schedule at all. It’s the lease — a contract the seller cannot transfer alone, because somewhere in section eleven or seventeen sits a sentence saying the tenant shall not assign this lease without the prior written consent of the landlord.
That sentence puts a third party in the middle of the deal. The landlord never signed the letter of intent, has no obligation to like the buyer, and knows the closing date. Understanding what Florida law actually requires of that landlord — and what it doesn’t — is the difference between a consent process you manage and one that manages you.
Start with the lease, because the default rule rarely survives it
Florida’s background rule is friendlier than most sellers expect: absent a restriction in the lease, a commercial tenant’s interest is freely assignable, the same as contract rights generally. The Florida-specific mechanics — what silence means, how anti-assignment clauses are construed, and why courts read them narrowly as restraints on alienation — are laid out well in a Practical Law practice note on assignability of commercial contracts under Florida law. But almost no commercial lease is silent. The drafting spectrum runs from consent “not to be unreasonably withheld,” to consent with no stated standard, to consent in the landlord’s “sole and absolute discretion,” and Florida case law treats those as three different deals.
The landmark is Fernandez v. Vazquez, 397 So. 2d 1171 (Fla. 3d DCA 1981). A commercial lease conditioned assignment on the landlord’s written consent, without saying what standard governed. The Third District held that a landlord may not arbitrarily refuse consent to an assignment: the refusal has to pass tests of good faith and commercial reasonableness. The court gave content to that standard with factors a factfinder may weigh — the financial responsibility of the proposed assignee, the assignee’s identity and business character, whether the premises would need alteration, and the legality and nature of the proposed use. And it named the motive that fails: withholding consent because the landlord would rather shake the tenancy loose and re-let at a higher rent is arbitrary, not reasonable. Landlords read the market too. If rents have doubled since the seller signed, the consent request is the landlord’s best opportunity in a decade, and Fernandez is the reason a flat refusal to allow a qualified assignee is a breach rather than leverage.
But Fernandez is a gap-filler, not a ceiling. Where the lease expressly grants the landlord sole discretion over assignment, Florida’s appellate courts have enforced that language as written — the Second District did so in the Speedway SuperAmerica line, reasoning that parties are free to contract for an arbitrary consent right, and that the implied reasonableness standard yields to express terms. So the first diligence question in any Florida asset deal is not whether the landlord will consent. It is which of the three clauses the seller signed, usually years ago, usually without a lawyer.
A stock sale dodges the assignment clause — until the transfer definition catches it
Buyers sometimes propose an equity purchase precisely to avoid the consent problem: buy the entity that holds the lease, and nothing is assigned. Whether that works depends entirely on the lease’s definition of transfer. Older or thinner leases prohibit only assignment and subletting, and in those the equity route genuinely works — the tenant entity is unchanged, and Florida courts enforce lease restrictions as written rather than extending them by analogy. Modern institutional leases close the gap with change-of-control language: a transfer of a controlling interest in the tenant entity is deemed an assignment requiring consent. If the target’s landlord is a national REIT or an institutional owner, assume the deemed-assignment clause is there and works. The structural tradeoffs beyond the lease — successor liability, licenses, tax — are the subject of my post on choosing between an asset sale and a stock sale in Florida, but the lease clause alone has flipped plenty of deals from asset to equity and back.
The consent package is a diligence exercise, run it like one
Landlords evaluating a consent request are underwriting a credit. The package that gets a fast yes anticipates that: the buyer’s financials, a business plan for the space, the proposed guarantor, and the purchase agreement’s treatment of the security deposit. Fernandez’s factors are effectively the landlord’s checklist, so answer them before they’re asked. First, financial responsibility — a buyer with a thinner balance sheet than the seller should expect the landlord to ask for a larger deposit, a personal guaranty, or both, and should price that into the deal early. Second, use — if the buyer intends any change to the operation, check the use clause and any exclusive-use covenants granted to co-tenants in the center before promising the landlord continuity. Third, alterations — renovation plans belong in the consent conversation, not after it. A buyer taking over specialized premises should also be reading the underlying title and estoppel picture, which is covered in the post on real property diligence in owner-occupied Florida deals.
Three contract points get missed in the rush. First, the seller’s guaranty. The named tenant’s assignment does not automatically release the seller — or the seller’s personal guaranty — from post-closing liability. Absent an express release, the assigning seller typically remains on the hook if the buyer defaults, which means a seller can hand over the keys, spend the purchase price, and still be liable for rent three years later. Negotiate the release with the landlord as part of the consent, and if the landlord refuses, get indemnity from the buyer and know what it’s worth. Second, the fee. Many leases let the landlord charge a review fee, require reimbursement of its attorney’s fees, or — in aggressive drafts — recapture the premises or share in any profit on the transfer. Find those provisions before the LOI fixes the price. Third, the timeline. Consent should be a closing condition with a stated outside date, and the purchase agreement should say who pays the landlord’s fees and what happens to the deposit if consent never comes. In licensed businesses the sequencing is even tighter, because the regulator and the landlord are both gating closing — the restaurant version of that squeeze, where the liquor license and the lease have to move together, is laid out in the post on buying or selling a Florida restaurant with a 4COP quota license.
The lease is the deal, price it like the deal
Here is how this usually shows up: the parties negotiate the purchase price for months and treat the landlord as a formality for the final two weeks. Then the landlord — reasonably or not — asks for a rent bump to market, a fresh ten-year guaranty, and a renovation commitment, and the economics the parties spent months on move by more than any working capital adjustment ever would. A below-market lease with years of term and renewal options is an asset the seller should be paid for; a month-to-month tenancy dressed up as a location is a risk the buyer should discount for. Both sides do better when the lease file — the lease, every amendment, the guaranty, the estoppel — is in the data room on day one, and the consent conversation starts before exclusivity, not after.
If you are buying or selling a Florida business where the lease is a big part of the value, feel free to reach out to my firm manager, Magda, at Magda@montague.law, or fill out our contact form. Mention you read this post.
