These would include the location of roads, pipelines, wells, or other facilities; use of water resources on lessor's property; maintenance of certain distances from structures; and assignment of the lease by the lessee.

Often, those rights are accompanied by the phrase “lessor's consent to be not unreasonably withheld.” Just what does that mean in a legal sense?

First, it has to mean something. Lessees routinely insist on a lessor's consent, saying that it would be “unreasonable” for consent to be withheld.

But the lessee agreed to this language in the lease, and thus has to give deference to the lessor. The lessor does not have to automatically give consent.

The standards and guidelines as to what refusal to consent is “reasonable” and what is “unreasonable” is not well defined in case law, and is not addressed by statutes.

It is left to the parties, or to a factfinder (arbitrator, court, or jury) if the parties cannot decide. Each situation depends on the particular facts involved.

Here are some issues to consider.

• Limits to owner's use of property. Will the measure for which consent is requested limit or affect the lessor's use of the property more so than under existing terms? If so, the lessee should give deference to the lessor, and lessor's consent on reasonable accommodation and assurances, or even to the refusal of consent.
• Environmental concerns. Does the measure for which consent is requested threaten lessor's property in an environmental or ecological sense (as determined by objective science and expertise, and not just the opinion of the lessor)? If so, lessee should be required to abide by lessor's concerns, and even refusal to consent.
• Benefit to lessee. Does the measure for which consent is requested give the lessee a windfall or benefit that was either not disclosed by the lessee to the lessor when the lease was originally entered, or that both parties had no anticipation of when the lease was entered? If so, lessor's refusal to consent should not be deemed unreasonable.
• Detailed information. Has the lessee failed (or refused) to provide lessor detailed information about the measure for which consent is requested (engineering drawings, permits, maps, reports, assignment documents, details as to consideration paid to the lessee for an assignment, etc.)? If so, refusal to consent is hardly unreasonable. The lessor should have the right to know what it is consenting to.

It cannot be over emphasized: Each situation depends on its facts and the language of the lease.

You should not rely on this blog for your decision. You should seek experienced legal counsel before consenting, or refusing to consent.

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Alan D. Wenger is an attorney in Youngstown, Ohio. His practice areas include oil and gas law, public utilities law, labor and employment law, land use law, environmental law, construction law and school law.