Chasing Down A Landlord's Consent With Days Left Before Closing

The situation

What Anjali and Prakash were actually afraid of was not the paperwork. It was arriving in Amherstburg with no house to go back to, no jobs waiting in their old province, and no business to run once they got there. Both worked as commercial pilots, and both had already given the notice their airline required to relocate their home base, sold their house, and put a deposit on a new one near the water. The business they were buying, a marina offering boat storage, slips and a small charter operation on the Detroit River, was the entire reason for the move. If the sale did not close, they had no plan B waiting in the same town, and no obvious way to unwind the relocation itself once it was already in motion.

The seller, Mohamud, had built the marina over close to two decades and was ready to retire. The purchase price sat around three and a half million dollars, reflecting the value of the boats, the equipment, the goodwill of a loyal customer base, and critically, the marina's docking rights along a stretch of waterfront the business did not own outright but leased on a long-term basis from a private landowner. The slips themselves were the business. Without a place to put customers' boats, there was no marina to buy, no matter how strong the rest of the balance sheet looked.

Anjali and Prakash had retained our office early, once the agreement of purchase and sale was signed, and the deal had moved smoothly through due diligence on the financial and corporate side. The purchase price, the equipment list, and the transition timeline were all settled. Closing was scheduled for a date that lined up with Anjali's confirmed base transfer and the closing on their new house, both of which were fixed and difficult to move without financial penalty and professional disruption neither of them wanted to explain to an employer mid-career.

It was in the final stretch of reviewing the marina's material contracts, the agreements the business depended on to operate, that the dock lease came under closer scrutiny. Most of the file had been routine: supplier agreements, a handful of customer contracts for seasonal storage, the equipment financing on the marina's service boats. The lease had not been, and it was the one document in the entire file that the business could not function without.

What was actually at stake

The dock lease, running for a term with years still remaining, was the legal foundation the entire business sat on. It gave the marina the right to occupy and operate the waterfront frontage where every slip, every stored boat, and every charter departure happened. Buried in its assignment provisions was a clause common in commercial leases but easy to miss without a careful read: the tenant could not assign the lease to a new party without the landlord's prior written consent. In Ontario, a clause like that is read as also requiring that consent not be unreasonably withheld, unless the lease expressly gives the landlord sole or absolute discretion to refuse, so how much room the landlord actually had to say no turned on exactly how that clause was worded.

A share purchase often avoids this kind of problem, since the corporate entity holding the lease simply keeps being the tenant rather than being replaced by a new one. But that only holds if the lease doesn't say otherwise, and most commercial leases contain a change-of-control clause that treats a transfer of the shares as if it were an assignment, so a share deal does not automatically sidestep a landlord's consent rights either. The deal Anjali and Prakash had negotiated was an asset purchase, structured that way for tax and liability reasons that suited both sides, since it let the buyers acquire the boats, equipment and goodwill without inheriting whatever old liabilities sat inside Mohamud's existing corporation. An asset purchase meant the lease itself needed to move from Mohamud's company to the buyers' new entity, and that move triggered the consent requirement directly, in a way a share sale never would have.

An assignment made without the required consent would breach the lease and give the landlord the right to terminate and re-enter, and many leases go further and declare any unconsented assignment void outright. Either way, Anjali and Prakash could not safely count on holding the premises without it, and they would end up owning boats, equipment and a customer list with nowhere to put any of it. Where consent could not be unreasonably withheld, the landlord still had to deal with a properly made request within a reasonable time, and drawn-out silence could itself amount to an unreasonable refusal, but that protection only existed if the lease didn't hand the landlord an unfettered discretion in the first place, and even then it was the deal's own timetable, not the landlord, that Anjali and Prakash had to manage around. Mohamud's own lawyer had assumed, incorrectly, that consent would be a formality handled as part of the standard closing checklist. It had not been raised with the landlord at all until our review caught it, which meant the request would be starting from zero with very little runway left.

The clock mattered as much as the clause. Anjali's base transfer, the sale of their previous home, and the closing on their new one were all fixed dates that had been set in motion months earlier and could not be pushed without real financial and professional cost. A delay of even a few weeks risked a gap between homes and a gap between paycheques, on top of the marina deal itself stalling. The landlord had no reason to move quickly unless someone gave them one, and every day spent waiting for a response was a day closer to a closing date the buyers could not actually meet without the lease in hand.

There was also a quieter risk sitting underneath the timeline pressure. If the request was rushed or handled poorly, and the landlord refused consent outright rather than negotiating terms, the entire transaction could collapse regardless of how much money or planning had already gone into it. A poorly framed first approach risked putting the landlord on the defensive before there was any chance to discuss terms at all.

What we did

1. Flagged the anti-assignment clause the moment it surfaced in our review of the marina's material contracts, rather than treating it as a routine item to note and move past. Recognizing immediately that the lease was the business's core asset meant the issue got escalated the same day instead of sitting in a diligence memo until closing week arrived on its own, when there would have been no time left to fix it properly.
2. Contacted the landlord directly to request consent, explaining the buyers' backgrounds, their financing, and their intention to continue operating the marina without interruption. Reaching out early, rather than waiting for Mohamud's side to make first contact, gave the landlord the maximum possible runway to respond before the closing date arrived and signalled that the buyers were serious, organized counterparties rather than a last-minute complication.
3. Prepared a full assignment and consent package including financial references for the buyers, proof of their financing commitment, and a summary of their operating plan for the marina, anticipating that the landlord would want reassurance before agreeing to a new tenant on a valuable waterfront property. Having this ready before the landlord even asked for it removed one of the most common causes of delay in a consent request.
4. Negotiated an initial rent increase demand down after the landlord, roughly a week into the request, indicated they would only consent if the rent moved to current market rates immediately rather than following the schedule already set out in the lease. We pushed back on both the size and the timing of the increase, arguing that the lease's existing schedule reflected a bargain the landlord had already agreed to.
5. Adjusted position again when the landlord changed theirs mid-negotiation, shifting from a request for an immediate lump-sum increase to a phased rent adjustment over the following two years. We used the buyers' willingness to accept a smaller near-term increase as leverage to get the phased structure put in writing quickly, before the landlord's position could shift a third time.
6. Coordinated a short, mutually agreed extension of the closing date with Mohamud's counsel, buying roughly ten additional days to finalize the consent without disturbing the buyers' fixed relocation dates, since the house closing and base transfer could not move but the marina closing had a few days of real flexibility once we asked for it directly and explained why it mattered.
7. Kept Anjali and Prakash informed at each stage of the negotiation, translating what was, at times, a slow and uncertain back-and-forth with the landlord into plain updates about what it meant for their actual moving date, flagging which decisions about their house closing and travel plans were still safe to make and which ones needed to wait a few more days for confirmation from the landlord's side.
8. Documented the landlord's consent and the revised rent terms in a written assignment and consent agreement, executed before the extended closing date, setting out the phased rent schedule, the effective date of the assignment and the landlord's confirmation that no other conditions remained outstanding, so that the marina's right to occupy the waterfront was legally secured before any funds changed hands or the buyers took possession of a single boat.

The outcome

The landlord's consent came through with days to spare before the extended closing date, and the sale closed on an asset basis as originally structured. Anjali and Prakash took over the marina with the dock lease properly assigned and their right to the waterfront frontage confirmed in writing, avoiding the scenario where they owned a business with nowhere to operate it.

The compromise had a real cost. The rent under the assigned lease increased above what the original term had scheduled, phased in over two years rather than imposed all at once, but still a meaningful addition to the marina's fixed costs going forward, one that would affect the business's margins for as long as the lease ran. Mohamud absorbed a small reduction in the purchase price to reflect that increased carrying cost, a concession negotiated once the landlord's position became clear, so the burden did not fall entirely on the buyers even though the underlying agreement had already been signed before the issue surfaced.

Anjali and Prakash's relocation went ahead on the dates they had already committed to, and the marina opened its next season under new ownership without a gap in operations. The episode left them with a lease on less favourable terms than they had originally bargained for, a direct result of a clause that should have been raised with the landlord earlier in the transaction, ideally before the agreement of purchase and sale was signed, rather than found close to closing with almost no room left to negotiate.

It also left them with a business that was, by the time they took possession, on solid legal footing rather than an open question, and with a clear understanding of exactly what they were paying in rent and why, rather than an assumption carried over from a lease they had never had reason to scrutinize before the deal was already underway. The two weeks of uncertainty were stressful, but they did not cost the family the business, the house, or the jobs they had already committed to.

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