## Facts

- Lessors leased Asheville, North Carolina premises to lessees (physicians operating a medical office and dialysis unit) for a five-year term beginning September 14, 1976, with total rent of $172,040 payable in monthly installments of $2,867.33.
- The lease barred assignment or sublease without the lessors’ written consent.
- Lessees paid rent until May 22, 1980, then vacated before the lease expired and sought to sublease the premises to a medical supply company.
- Lessors refused to consent to the proposed sublease.
- Lessors sued for rent due after lessees’ departure, including one month’s rent that came due on September 17, 1980.
- Lessees argued the refusal to consent was unreasonable and a material breach excusing further rent, and also argued lessors failed to mitigate damages after abandonment.

## Issues

1. Whether a lease clause requiring the lessor’s written consent to any assignment or sublease implies a duty that consent not be unreasonably withheld when the lease contains no reasonableness limitation.
2. Whether summary judgment for unpaid rent was improper due to a genuine dispute of material fact on the lessors’ alleged failure to mitigate damages by reletting.

## Decision

- The Court of Appeals affirmed summary judgment for the lessors for one month’s rent plus interest.
- The court held no implied reasonableness limitation applies to a consent-to-sublease clause that is silent on reasonableness; the lessor may withhold consent for any reason.
- The court held lessees failed to forecast evidence sufficient to create a triable issue that lessors did not use reasonable diligence to mitigate damages.

## Legal Principles

- A lease may validly restrict a tenant’s ability to assign or sublet by requiring the lessor’s consent; if the lease does not condition consent on reasonableness, courts will not add such a condition.
- Where a lease permits transfer only with the lessor’s consent, withholding consent—whether reasonable or unreasonable—does not breach the lease if the contract contains no limiting standard.
- Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law.
- Although a nonbreaching party has a duty to mitigate damages, the party asserting failure to mitigate bears the burden of producing evidence that reasonable diligence was not used; conclusory assertions do not create a fact issue.

## Conclusion

The court enforced a commercial lease’s unqualified consent requirement for subleasing, refusing to imply a reasonableness standard, and affirmed summary judgment for unpaid rent because the tenants did not produce evidence establishing a factual dispute on mitigation.


Isbey v. Crews, 55 N.C. App. 47, 284 S.E.2d 534 (N.C. Ct. App. 1981)