Landlord and tenant – Assignment – Statute of frauds

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Where a commercial landlord has challenged the validity of a tenant’s purported lease assignment, there was no written assignment agreement as required by G.L.c. 183, §3, so the landlord is entitled to summary judgment on all of the claims that turn on the validity of the assignment.

“In 2014, Markley Boston, LLC (‘Markley’) rented space in its telecommunications colocation facility to Zayo Group, LLC (‘Zayo’). This case involves a dispute about Zayo’s purported assignment of that lease to a related entity as part of a larger sale of assets to DataBank Holdings Ltd. (‘DataBank’). The parties all move for summary judgment. Markley contends the lease was never properly assigned, it never consented to a sublease, it is owed money due to the purported assignment, and the present occupant is a tenant at will. Plaintiff and the third-party defendants (together, ‘defendants’) cross-move for summary judgment, arguing that the lease was properly assigned. For the following reasons, I find that for Markley on the central question of whether the lease was properly assigned. …

“Based on the existing record, I find that no valid assignment occurred. Although §9.5 does not expressly require a written assignment, Massachusetts law, which governs the Lease, … requires a writing. Specifically, under G.L.c. 183, §3, ‘[a]n estate or interest in land created without an instrument in writing signed by the grantor or by his attorney shall have the force and effect of an estate at will only, and no estate or interest in land shall be assigned, granted or surrendered unless by such writing or by operation of law.’

“Here, no written agreement by Zayo assigned the Lease to zColo while Zayo wholly owned zColo. Nor have defendants offered any other documentation sufficiently evidencing an assignment to satisfy G.L.c. 183, §3. Thus, the Lease was not validly assigned and zColo is, at most, a tenant at will at the Premises. …

“Because I conclude that no assignment occurred, Markley is entitled to summary judgment on all of the claims that turn on the validity of the assignment and zColo’s right to enforce the Lease. …”

zColo, LLC v. Markley Boston, LLC (Lawyers Weekly No. 09-105-25) (16 pages) (Krupp, J.) (Suffolk Superior Court) (Civil No. 23-962-BLS1) (July 29, 2025).

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