What is an Assignment?
- Assignment is the process where a tenant (the “Assignor”) transfers their tenancy to another person (the “Assignee”)
- Assignment is distinct from sub-letting, which is where the tenant allows another person (the “Sub-tenant”) to occupy the property, though retains their own status as tenant.
- Assignment mostly takes place:
Upon the death of a tenant where there is a Successor to the tenancy (see Succession)
Where there are two joint tenants, one of whom wishes to leave and give their rights under the tenancy to the remaining tenant
Where there is a Mutual Exchange
- The rules allowing Assignment of Secure Tenancies are different to the rules for Assignment of Assured Tenancies.
- However, where Assignment is permitted, the rules for effecting the Assignment are the same.
- Unless the Assignment is effected either by Court Order or by way of Succession, both the Assignor and the Assignee and will need to sign a Deed of Assignment, to which the landlord will need to have given their permission in writing (Licence to Assign).
Assignment of Secure Tenancies
- This is only possible in one of the three following cases (s.91 Housing Act 1985)
1. Where a Court Order has been made in certain Family Law proceedings (e.g. divorce or proceedings relating to children)
2. To a person who would have been qualified to succeed to the tenancy if the tenant had died immediately before the Assignment
3. By way of Mutual Exchange following the strict provisions of s92 and Schedule 3 Housing Act 1985
- Assignment will not take place if it is attempted in any other circumstances (the original tenant retains the tenancy even if they have left the property).
- However, it is an implied term of every Assured Tenancy that the tenant will not assign without landlord’s consent (15 (1)(a) Housing Act 1988)
- If the tenancy expressly states that the landlord’s consent is required for an Assignment, then that consent cannot be unreasonably withheld.
- If there is no such express term in the tenancy, then there is no implied term that the landlord’s consent shall not be unreasonably withheld (S15(2) Housing Act 1988)
- Registered Providers should apply the same rules to which Local Authorities must adhere when considering whether to allow a Mutual Exchange (see below)
Mutual Exchange
- The process by which social tenants swap tenancies
- Prior written permission of the landlord(s) is needed before the exchange
- Landlord has a period of six weeks to respond to request for permission, otherwise permission is inferred
- Landlord can only refuse permission on one of ten grounds (set out in Schedule 3 Housing Act 1985), the most common being:
The landlord has commenced possession proceedings or certain proceedings relating to anti-social behaviour
The tenancy was given in respect of the tenant’s job
The property is adapted for someone with special needs and the new tenant does not have those needs
The property would be either much too large or much too small for the incoming tenant
- Landlord can insist on rent arrears being cleared/other tenancy breaches being remedied before permission is given. No other conditions are allowed