Legal Question in Real Estate Law in California

If I am under a lease agreement for 3 more months and I wish to pass my obligation to another party, does the novation agreement need to be handled by a lawyer or can it be handled by the two parties?


Asked on 4/21/12, 9:46 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Although a novation is certainly one way to "transfer" a lease, I wonder if you considered the twp more common methods: assignment or sublease. One major difference is that a novation entirely replaces the existing lease with a new one, and therefore the landlord mus necessarily be a party. See, in general, Civil Code sections 1530 to 1533 regarding the law of novations.

An assignment of a lease transfers the entire existing lease, rights and obligations, from the present tenant to the new tenant. (I'm assuming it is a real estate lease). A sublease places the subtenant in the position of the tenant for a specified time, not necessarily the entire remaining lease.

I don't know if you could find an example of a novation agreement sutable for transferring a lease obligation in a "forms" manual at your county law library, but it's worth a look and the law librarian may be able to help you. Every California county has at least one public law library, usually in, at or near the courthouse.

Also, when you say "two parties," I believe you will in fact have three -- the lessor, the new lessee, and yourself as the outgoing lessee. The lessor (landlord?) needs not only to bind the new lessee/tenant, he/she/it needs in the same agreement or set of coordinated agreements release you from your remaining obligation in order for you to have a novation.

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Answered on 4/21/12, 6:25 pm


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