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NEWMAN V. HINKY DINKY OMAHA-LINCOLN, SC of NE, 1988

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NEWMAN V. HINKY DINKY OMAHA-LINCOLN, SC of NE, 1988 Powered By Docstoc
					PROPERTY NEWMAN V. HINKY DINKY OMAHA-LINCOLN, SC of NE, 1988 History: District court ruled there was no issue of material fact whether Newman as lessor properly withheld consent to assignment/sublease b/c a landlord may withhold consent for any reason District court held acceptance of rent payments was not a waiver under the lease and granted Newman a judgment allowing restitution of premises Facts: Newman owns land and leased it to ACS (lease says Newman is landlord and ACS is tenant w/fixed rent and additional rent based on tenant’s gross receipts); ACS operated a chain of Hinky Dinky supermarkets in NE; lease says they couldn’t sublet/assign ACS stopped all operations of Hinky Dinkys; before that, ACS asked for consent for a lease assignment to Nash Finch and sublease to Hinky Dinky; Newman did not consent; Newman notified ACS, Nash Finch, and Hinky Dinky that ACS was in default and served notice to vacate premises; Newman accepted rental payments from Nash Finch; Newman served notice to quit on Hinky Dinky and filed petition for restitution of premises Issue(s): In the absence of an express lease provision specifically permitting a lessor to withhold consent to an assignment of the lease or subletting, must a lessor have a commercially reasonable objection to the assignment or subletting, when the lease allows assignment or subletting only with the lessor’s consent? Holding: District court reversed—Newman did not have good faith and reasonableness Analysis: Factors determine good faith/reasonability in withholding consent to assignment include: 1. financial responsibility or proposed assigness/sublease, 2. assignee’s/subleasee’s suitability for the particular property, 3. legality of proposed use, 4. need for alteration of premises, and 5. nature of occupancy It’s a matter of good faith and reasonableness


				
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