applicable lease provisions, excludes inapplicable lease provisions and provides new terms that clarify the relationship between the parties. The following describes some of the new terms commonly provided in sublease agreements.
Sublandlord Representations and Warranties. The subtenant generally requires that the sublandlord provide certain representations and warranties in the sublease. Some of these representations and warranties are comparable to those required by assignees in an assignment. The subtenant wants sublandlord’s assurances that the sublandlord has provided the subtenant with a true, correct and complete copy of the lease, that the lease is in full force and effect, and that the lease has not been modified, supplemented or amended except as expressly set forth in the sublease. The subtenant wants the sublandlord to warrant that neither sublandlord nor landlord is in default under the lease and that sublandlord has no knowledge of any fact or condition which, with notice or lapse of time or both, would constitute such a default. The subtenant also wants the sublandlord to warrant that it has not assigned, transferred or delegated any of its rights or duties under the sublease.
In addition, the subtenant wants the sublandlord to represent and warrant that: (a) sublandlord will not commit or suffer any act or omission that will result in a violation of or a default under the lease; (b) sublandlord will use its best efforts to cause landlord to perform its obligations under the lease with respect to the premises and to give any required consents under the lease for the benefit of subtenant; (c) sublandlord will deliver to subtenant a copy of any notice received by landlord relating to the premises within a specified period of time; (d) subtenant shall have the right to cure any default by sublandlord on or before the date sublandlord’s applicable cure period expires and sublandlord shall reimburse subtenant for any expenses incurred in curing such default; and (e) sublandlord shall not amend or terminate the lease, or surrender any portion of the premises, without subtenant’s prior written consent.
Sublease Premises. The sublease should specify that portion of the leased premises that sublandlord is subleasing to subtenant.
Sublease Term. The sublease should define the sublease term. The sublease term must be less than the lease term (even if only by one day) to ensure that a court does not reclassify the sublease as an assignment. Sheridan v. O.E. Doherty, Inc., 106 Wash. 561, 181 P. 16 (1919); Gazzam v. Young, 114 Wash. 66, 194 P. 810 (1921); Hockersmith v. Sullivan, 71 Wash. 244, 128 P. 222 (1912).
Rent and Other Expenses. The sublease should establish the amount of rent and other expenses owed by subtenant under the sublease.
Provision of Services. The sublease should list those services being provided to subtenant and establish whether those services shall be provided by landlord or sublandlord.
Condition of Premises. Similar to a lease, the sublease should describe the sublease premises condition and any applicable improvements or allowances to be provided by sublandlord.
Insurance, Waiver of Subrogation. The sublease should require subtenant and sublandlord to maintain insurance during the sublease term that complies with the lease and requirements of the parties to the sublease. Additionally, both sublandlord and subtenant should require a waiver of subrogation; ideally,