How Do You Transfer a Lease When Selling Your Business?
By Troy Frank, Owner — Indiana Equity Brokers
Estimated read time: 7 min
The short answer: There are three ways to handle a commercial lease when selling a business: assign the existing lease to the buyer, negotiate a new lease directly between the buyer and landlord, or have the seller sublease the premises to the buyer. Lease assignment is by far the most common approach, but it requires landlord approval in almost every case, takes 15 to 30 days or more, and — this part surprises many sellers — doesn’t automatically release you from liability if the buyer later defaults on the rent. The lease needs to be reviewed and addressed before your business goes to market, not during due diligence.
Here’s a scenario that plays out more often than sellers expect. A deal has been negotiated, a price has been agreed upon, and the buyer is ready to move forward. Then someone reads the lease and realizes it prohibits assignment without landlord consent, or the landlord uses the approval process as an opportunity to renegotiate terms. The closing gets pushed. The buyer gets nervous. The deal falls apart.
The commercial lease is often the most overlooked part of selling a business. It doesn’t generate revenue, it doesn’t appear on the income statement, and sellers rarely think about it until a buyer asks to see it. But for any business whose location matters, the lease is one of the most important documents in the transaction. This article covers how lease transfers actually work, what your options are, what sellers stay on the hook for even after closing, and how to avoid the landlord becoming a deal-breaker.
The Three Ways to Handle a Lease When Selling
Your lease situation at the time of sale will generally fall into one of three categories, and how you handle it affects the deal timeline, the buyer’s risk, and sometimes your own exposure long after closing.
Assignment of the Existing Lease
This is what most business sales use. When you assign a lease, you’re transferring your rights as a tenant to the buyer. They step into your shoes as the leaseholder and take on the obligation to pay rent and comply with the lease terms going forward.
Assignment sounds straightforward, but there are two things sellers routinely get wrong about it. First, almost every commercial lease requires landlord consent before an assignment is effective. The landlord typically has 15 to 30 days to review and respond, and they can impose conditions — a personal guarantee from the buyer, a higher security deposit, a rent review — as part of granting approval. Second, and more important: assignment doesn’t automatically release you from the lease. In most standard commercial leases, the seller remains secondarily liable to the landlord even after the assignment is complete. If the buyer stops paying rent two years after closing, the landlord may have the right to come after you for the balance.
Getting a formal release of liability from the landlord at the time of assignment is something sellers should push for, but landlords aren’t obligated to provide it. Whether you can get one depends on the landlord, the buyer’s financial profile, and how much negotiating room exists. This is worth discussing with your transaction attorney before you close.
New Lease
Sometimes the existing lease is expiring or near expiration, the terms are unfavorable, or both parties prefer to start fresh. In that case, the buyer negotiates a new lease directly with the landlord and the seller’s lease ends. A new lease is drafted between the buyer and the landlord and the seller has no ongoing obligation.
This approach is cleaner for the seller because there’s no continuing liability, but it introduces risk for the deal. The buyer and landlord are now negotiating independently, and there’s no guarantee the landlord will offer terms the buyer can live with. If the landlord raises the rent significantly or offers a shorter term than the buyer needs, the deal can unravel even after everything else is settled.
For a buyer using SBA financing, the lender typically wants to see a lease with at least as much remaining term as the loan, often 10 years total including options. A landlord who won’t provide that can effectively block an SBA-financed acquisition even if the seller and buyer are in complete agreement.
Sublease
A sublease is less common in small business sales, but it comes up. In a sublease arrangement, the seller remains the primary tenant and the buyer pays rent to the seller, who in turn pays the landlord. The landlord’s relationship stays with the seller. The buyer never has a direct lease relationship with the landlord.
Subleases are sometimes used when the existing lease prohibits assignment, when the seller wants to maintain some control over the premises, or when the landlord is difficult to work with directly. But they create ongoing entanglement between seller and buyer that most parties want to avoid. The seller is functionally a landlord to their own buyer, with all the responsibilities and risks that come with that role.
What’s Actually in Your Lease: What to Check Before You List
Before your business goes to market, someone needs to read your lease. Not summarize it, not describe it from memory — actually read it. Here’s what matters for a sale.
The assignment clause. Does the lease allow assignment? With or without landlord consent? Some leases prohibit assignment entirely. Others allow it only with consent that “shall not be unreasonably withheld.” Some leases give the landlord the right to reclaim the premises if you want to assign, which means they could effectively end your tenancy rather than allow the sale.
Time remaining and renewal options. A lease with eight or more years remaining, including renewal options the buyer can exercise, is an asset. A lease expiring in 18 months is a problem, because buyers and SBA lenders both need term certainty. When we’re preparing a business for sale, the lease term is one of the first things we flag.
Change of control provisions. Some leases are written so that a change in the ownership of the business entity — even without a formal assignment — constitutes a transfer that requires landlord consent. If you’re selling the business as a stock sale rather than an asset sale, this matters. The buyer may think they’re acquiring the entity without triggering the lease transfer clause, and they’d be wrong.
Personal guarantee terms. If you personally guaranteed the lease when you signed it, that guarantee may persist even after an assignment unless the landlord specifically releases it. This is another detail sellers overlook until a deal is already in progress.
What Landlords Can — and Can’t — Do
Landlords have a lot of power in this process, but they’re not unlimited. In most states, including Indiana, if a lease allows assignment with landlord consent, that consent can’t be unreasonably withheld. The landlord can review the buyer’s financials, require a personal guarantee from the buyer, or ask for a larger security deposit. What they generally can’t do is simply refuse without cause, or use the approval as leverage to raise the rent beyond what the lease terms already allow.
That said, “unreasonably withheld” is a legal standard, and what counts is something a court decides — not something either party decides on their own. Landlords who are slow to respond, who impose unusual conditions, or who use the approval process as a negotiating tool can delay or derail a closing even when they don’t have a legal right to block it.
This is exactly the situation described in our post on whether a landlord can kill your business sale. The short version is yes, they can create enough friction to do real damage, even when they can’t legally say no.
The practical lesson is to engage the landlord early. Once you have a signed letter of intent and a credible buyer, approaching the landlord as a courtesy before a formal assignment request is often more effective than making the assignment demand the first contact. Landlords who feel blindsided by a sale are more difficult than landlords who’ve been kept in the loop.
When the Lease Is a Deal Problem — and How to Get Ahead of It
The sellers who run into serious lease problems during a deal are almost always the ones who didn’t look at the lease until a buyer asked about it. By that point, any issues become urgent, which weakens your negotiating position with the landlord.
The sellers who handle it well are the ones who reviewed their lease before listing, understood what they had, and either resolved issues in advance or disclosed them honestly to prospective buyers upfront. A lease issue that’s disclosed at listing is a known quantity. A lease issue discovered during due diligence feels like a surprise, and buyers treat surprises poorly.
Indiana Equity Brokers reviews lease terms as part of our listing preparation process. If there’s an assignment issue, a short remaining term, or a landlord who’s historically difficult, we’d rather know at the start than find out 60 days into a deal. It changes how we price the business, how we structure buyer conversations, and whether we need to have a landlord conversation before the first buyer ever sees the listing.
Frequently Asked Questions
Do I need landlord approval to sell my business? In most cases, yes. Commercial leases almost universally require landlord consent before the lease can be assigned to a new tenant as part of a business sale. The landlord typically has 15 to 30 days to respond to an assignment request, and they can impose conditions including a personal guarantee from the buyer or a higher security deposit. A landlord can’t unreasonably withhold consent if the lease allows assignment, but what counts as unreasonable is a legal question rather than a simple one.
Can I still be held responsible for the lease after selling my business? Yes, in most cases. A standard commercial lease assignment makes the buyer responsible for rent going forward, but it doesn’t release the seller from the original lease guarantee unless the landlord specifically agrees to that release. If the buyer defaults, the landlord may have the right to pursue the original seller for unpaid rent or other obligations. Negotiating a release of liability from the landlord at closing is the right approach, though landlords aren’t required to provide one.
What happens if my lease doesn’t allow assignment? If the lease prohibits assignment entirely, you’ll need to work with the landlord to either get consent for an exception, negotiate a new lease directly with the buyer, or structure the sale in a way that doesn’t trigger the transfer restriction. An outright prohibition on assignment without any path forward is uncommon, but it does happen. This is something to address well before you go to market, not during due diligence.
How much lease time remaining do buyers and SBA lenders need? SBA lenders typically want the lease term — including renewal options the buyer can exercise — to cover at least the length of the loan, which is often 10 years for an acquisition loan. Buyers who aren’t using SBA financing have more flexibility, but they still want enough term to justify the investment. A lease expiring in 12 to 18 months with no renewal options significantly reduces a buyer’s willingness to pay full price and may eliminate SBA financing as an option.
What is the difference between a lease assignment and a sublease? In an assignment, the buyer takes over the lease directly and becomes the primary tenant. The seller’s rights in the lease end. In a sublease, the seller remains the primary tenant and the buyer pays rent to the seller, who continues paying the landlord. Subleases are less common in business sales because they keep the seller entangled in the property after closing. Assignment is the standard approach because it gives the buyer a direct relationship with the landlord and removes the seller from the ongoing tenancy.
Sort Out the Lease Before You List
The lease isn’t the most exciting part of selling a business, but it’s one of the parts most likely to cause problems at the worst possible time. Getting clarity on your lease terms, assignability, and remaining term before you go to market is straightforward when you’re not under deal pressure. After a buyer has signed a letter of intent and you’ve been off the market for 60 days, it’s a much harder conversation to have.
If you’re thinking about selling and you want to understand how your lease affects the process and the price, that’s worth talking through before you do anything else. Indiana Equity Brokers has closed more than 879 Indiana transactions, and lease issues come up regularly enough that we know how to handle them without derailing a deal.
And if you want to understand all the ways a landlord can affect your sale beyond just the lease transfer itself, our post on whether a landlord can kill your business sale covers that in detail.
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Do You Need an Attorney to Sell a Business in Indiana?
By Troy Frank, Owner — Indiana Equity Brokers
Estimated read time: 7 min
The short answer: Indiana does not legally require an attorney to sell a business, but every seller should have one — specifically a transaction attorney with M&A experience, not a general business lawyer. An attorney reviews and negotiates the purchase agreement, protects you on representations and warranties, handles Indiana-specific requirements like the Department of Revenue tax clearance certificate, and drafts closing documents. Sellers who skip this step to save $3,000–$8,000 in legal fees regularly lose far more in poorly negotiated deal terms or post-closing liability.
Most sellers ask this question early in the process and then answer it themselves: “I’ve sold real estate without an attorney, how different can this be?”
Very different.
A business sale involves representations you make about the accuracy of your financials, the status of your contracts, the absence of hidden liabilities, and the transferability of your licenses. If any of those representations are wrong — even accidentally — a buyer can come after you for damages after the sale closes. Real estate doesn’t work that way.
The better question isn’t whether you need an attorney. It’s what kind of attorney you need — and what they should actually be doing for you at each stage of the deal.
What a Business Sale Attorney Does (Stage by Stage)
A transaction attorney isn’t just there to sign off at closing. They’re involved throughout the process. Here’s what that looks like in a typical Indiana business sale.
Before You Go to Market
Before your business is listed, an attorney can review your existing contracts for assignability issues — leases, customer agreements, vendor contracts — and flag anything that could create problems for a buyer. If your lease requires landlord consent to transfer, that needs to be known upfront, not after a buyer signs an LOI.
This is also when an attorney helps you understand your exposure. What are you prepared to represent about the business? Where are the gaps? Getting ahead of potential due diligence issues before a buyer finds them is far less painful than addressing them mid-deal.
Letter of Intent (LOI) Stage
The LOI defines the terms of the deal before the purchase agreement is drafted. It’s typically “non-binding” on the main transaction — but certain provisions are binding immediately: exclusivity, confidentiality, and sometimes a termination fee.
A transaction attorney reviews the LOI to make sure its binding provisions protect you and that the non-binding language doesn’t inadvertently create obligations you didn’t intend. An inexperienced seller who signs a poorly written LOI can find themselves locked out of the market for 90 days on a deal that was never going to close.
Purchase Agreement Negotiation
This is where most of the attorney’s work happens. The purchase agreement is the contract that governs what you’re selling, what you’re representing, what happens if something goes wrong, and what you receive in return.
Key sections your attorney negotiates:
Representations and warranties: Statements you certify as true. If any turn out to be false, the buyer can pursue a claim. Your attorney limits the scope of reps to what you can actually defend and pushes for narrower language on anything uncertain.
Indemnification caps and baskets: How much exposure you have if a rep turns out to be wrong, and how much loss the buyer must absorb before they can bring a claim. Standard deals include both a “basket” (a deductible the buyer must hit first) and a “cap” (a ceiling on your total liability). These are heavily negotiated. Buyers’ attorneys push for large caps and low baskets; sellers’ attorneys push the opposite.
Survival period: How long after closing the buyer can bring a claim against your representations. Shorter is better for sellers. The negotiated standard for most Main Street deals is 12–24 months.
Escrow or holdback: Whether a portion of the purchase price is held in escrow post-closing to cover potential claims. If your attorney can get this eliminated — or minimize the amount and duration — it puts more money in your hands at closing.
Closing
At closing, your attorney reviews all final documents, confirms that conditions have been met, handles the transfer of entity documents, and ensures the closing funds flow correctly. For sellers, this includes confirming that your promissory note (if you’re carrying seller financing) is properly executed with a personal guarantee and UCC filing.
Transaction Attorney vs. General Business Attorney: An Important Distinction
This distinction matters more than most sellers realize.
A general business attorney — the one who formed your LLC, reviewed your vendor contracts, or handled an employment dispute — may be excellent at what they do. But if they haven’t represented sellers in M&A transactions regularly, they don’t know what’s customary.
They don’t know that a 24-month survival period is standard but 36 months is a giveaway. They don’t know whether a 10% indemnification cap is market or aggressive. They don’t know how much leverage you actually have on a representation that every buyer in your industry asks for.
Not knowing what’s “market” means one of two things: they accept everything (which costs you), or they fight everything (which costs you differently, by slowing the deal or scaring the buyer off). Neither is the right approach.
Ask any attorney you’re considering specifically: how many business sale transactions have you represented sellers in during the past 24 months? What was the typical deal size? Do you regularly work with business brokers? If they can’t answer those questions clearly, you may be paying for their education.
Indiana Equity Brokers regularly works with transaction attorneys across Indiana who specialize in Main Street to lower-middle-market deals. We’re happy to provide referrals as part of our process — sellers who work with experienced transaction counsel close more smoothly and with better outcomes.
Indiana-Specific Legal Requirements in a Business Sale
Indiana has several state-level requirements that arise in business sales. A transaction attorney familiar with Indiana law knows to address these proactively; a general attorney may not know they exist.
Indiana Department of Revenue Tax Clearance
Before or at closing, the Indiana Department of Revenue requires a tax clearance certificate confirming the seller has no outstanding state tax liabilities. Without this, buyers can be held responsible for the seller’s back taxes. Most Indiana transaction attorneys handle this routinely, but it needs to be initiated early — the DOR’s processing time can add weeks to the closing timeline if it’s not requested promptly.
License and Permit Transfers
Many Indiana business licenses and permits don’t automatically transfer to a new owner. Industry-specific examples:
Alcohol permits: Businesses holding a license through the Indiana Alcohol and Tobacco Commission (IATC) must obtain IATC approval for the transfer before the buyer can legally operate. This process can take 30–60 days and must be coordinated with the closing timeline.
Professional licenses: Certain service businesses — healthcare, childcare, transportation, contracting — carry licenses tied to the individual owner or the business entity. A new owner may need to apply separately, and the existing license may not transfer at all. This is a material deal issue that needs to surface before an offer is accepted.
Environmental permits: Businesses with environmental permits (manufacturing, automotive, certain food service) may face additional disclosure requirements and permit transfer obligations under Indiana state law.
None of these are deal-killers on their own. But they all take time, and they all need to be identified before the LOI is signed — not discovered during due diligence when both sides have already invested months into the transaction.
The Broker and Attorney Are Not the Same Role
Sellers sometimes assume the business broker and the attorney play overlapping roles. They don’t.
A business broker — Indiana Equity Brokers, in our case — handles the commercial side of the deal. We value the business, market it to qualified buyers, manage the buyer screening process, negotiate price and basic deal terms, and coordinate the transaction from listing through closing. We have 23 years and 879+ closed transactions behind that process.
What we don’t do is give legal advice. We’re not qualified to, and it wouldn’t serve you well if we tried.
Your attorney handles the legal side: document review and drafting, representation and warranty negotiation, indemnification structure, closing mechanics, and the Indiana-specific compliance items described above.
The two roles work in parallel, not in sequence. The deal moves faster and closes better when both a broker and a transaction attorney are engaged from the start — not when one is waiting on the other.
We cover some of the specific legal mistakes sellers make without proper counsel in our post on legal mistakes that can derail an Indiana business sale. It’s worth reading before you engage an attorney so you know what to ask about.
What Does a Business Sale Attorney Cost in Indiana?
Attorney fees for a business sale vary based on deal complexity and the attorney’s experience level. For a typical Main Street transaction in Indiana — a deal in the $500,000 to $2 million range — sellers can expect to pay roughly:
- $3,000–$6,000 for a straightforward asset sale with standard documents
- $6,000–$12,000 for more complex deals involving real estate, multiple entities, licensing issues, or significant negotiation on reps and warranties
Some transaction attorneys charge flat fees for defined scopes; others bill hourly. Either structure works as long as the scope is clear upfront.
Context on what that number means: a skilled attorney who catches one bad indemnification provision — one that might have exposed you to a post-closing claim of $50,000 — has paid for themselves many times over. The legal fees are almost never the reason deals go sideways. Skipping them is.
Frequently Asked Questions
Do I legally need an attorney to sell my business in Indiana? Indiana law does not require an attorney to sell a business. However, virtually every transaction-experienced broker and business advisor recommends one. The purchase agreement, representations and warranties, non-compete terms, and Indiana-specific requirements like tax clearance all carry real legal and financial consequences. Sellers who proceed without transaction counsel routinely accept terms they would have negotiated differently with proper advice.
What is the difference between a business broker and a business sale attorney in Indiana? A business broker handles the commercial transaction: valuation, marketing, buyer screening, price negotiation, and deal coordination. A business sale attorney handles the legal documentation: reviewing and negotiating the purchase agreement, protecting the seller on representations and warranties, managing Indiana regulatory requirements, and handling closing documents. Both roles are necessary in most transactions, and they work in parallel — not in sequence.
What Indiana-specific legal steps are required when selling a business? Key Indiana requirements include obtaining a tax clearance certificate from the Indiana Department of Revenue, managing license and permit transfers (including IATC approval for alcohol permits), and addressing any professional or environmental licenses that may not automatically transfer to a new owner. A transaction attorney familiar with Indiana law handles these as part of the closing process, but they need to be initiated early — some take 30–60 days.
How do I find a transaction attorney for selling my business in Indiana? Ask specifically about M&A transaction experience, not just general business law. A qualified transaction attorney should be able to name specific business sale transactions they’ve represented sellers on in the past two years and describe their typical deal size. Business brokers who work regularly in the Indiana market — including Indiana Equity Brokers — can refer you to attorneys who specialize in Main Street transactions at appropriate fee levels.
What does a business sale attorney cost in Indiana? For a typical Main Street business sale in Indiana (deals in the $500,000–$2 million range), seller-side attorney fees generally run $3,000–$12,000 depending on deal complexity. Straightforward asset sales with standard documents fall toward the lower end. More complex transactions involving real estate, licensing issues, or significant purchase agreement negotiation fall toward the higher end. Most transaction attorneys offer flat-fee or capped-fee structures for defined scopes of work.
The Bottom Line
You need an attorney. Specifically, you need one who has done this before — in M&A, at a deal size similar to yours, in Indiana.
The broker handles the deal. The attorney protects you in the deal. Those are different things, and you need both.
If you’re preparing to sell a business in Indiana and want to understand the full process — including what your legal and advisory team should look like — a confidential conversation with Troy Frank takes about 20 minutes and costs nothing. Indiana Equity Brokers has closed more than 879 Indiana transactions and has referrals to transaction attorneys across the state.
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