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Assignment: Assured/assured shorthold tenancies

This content applies to England

Information about assignment of assured and assured shorthold tenancies.

Whether an assured or assured shorthold tenancy can be assigned depends on what is said in the tenancy agreement. However, the position regarding consent is different from the position for other tenancies.

Periodic tenants

The position will depend upon what the tenancy agreement says about assignment:

  • periodic assured and assured shorthold tenants whose tenancy agreement says nothing about assignment cannot assign their tenancies unless their landlord consents.[1] In this case, landlords may withhold consent for any reason, whether reasonable or not.[2] A tenant who assigns the tenancy without consent leaves the assignee in a vulnerable position as this is a breach of a term of the tenancy and is a discretionary ground for possession.[3] The exception to this is where a premium has been paid for the grant of tenancy, for example a tenancy deposit that is greater than one-sixth of the annual rent is a premium
  • where the tenancy agreement allows assignment freely and without consent, then assignment will be allowed
  • where the tenancy agreement expressly makes provision for the tenant to assign with the landlord's consent, the tenant will be able to assign with consent and such consent cannot be unreasonably withheld
  • where the tenancy forbids assignment, an assignment would be a breach of the tenancy agreement and could be subject to possession action.

Fixed-term tenants

The rights of assured and assured shorthold tenants with fixed-term tenancies to assign their tenancies are governed by their tenancy agreements.

Housing association tenants

The rules on assignment above apply equally to assured and assured shorthold tenants of private registered providers of social housing (PRPSH).

In addition, tenants of a PRPSH (or of a housing trust that is a charity) can 'mutually exchange' with other tenants in the following situations:

Mutual exchange –  assignment of tenancy

A secure tenant has the right to mutually exchange her/his tenancy by way of assignment to a fully assured tenant.[4] For more information see 'Tenancies assigned under the right to exchange (mutual exchange)' on the page Secure tenancies and flexible tenancies.

Mutual exchange – transfer of tenancy

There is a statutory right to mutually exchange under the procedure introduced in section 158 of the Localism Act on 1 April 2012, where at least one of the tenancies is a periodic secure or assured tenancy which existed prior to 1 April 2012. The right only applies where one of the following three permutations applies:[5]

  • assured shorthold tenant exchanges with a secure tenant
  • assured tenant exchanges with flexible tenant
  • assured tenant exchanges with assured shorthold tenant.

In these cases, the exchange is not done by way of assignment, rather each tenant's tenancy is brought to an end and a new tenancy is granted for their new property. Thus each tenant retains their existing status (where the landlord condition for creating that type of tenancy allows it).

Each tenant wishing to exchange must make a request in writing to their own landlord. The landlord can only refuse consent on limited grounds.[6] Exchanges can take place between two or more tenants if each landlord consents.

An assured shorthold tenant cannot rely on the right in section 158 of the Localism Act to exchange her/his tenancy in accordance with that section if:[7]

  • her/his tenancy is for a fixed term of less than two years
  • her/his tenancy is periodic
  • the rent payable under her/his tenancy is:

In these cases a mutual exchange may only take place if each landlord gives permission, for example through a contractual term in the tenancy agreement.

For more detailed information see 'Tenancies transferred under the right to exchange (mutual exchange)' on the page Secure tenancies and flexible tenancies.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.15(1) Housing Act 1988.

[2] s.15(2) Housing Act 1988.

[3] Ground 12, Sch.2 Housing Act 1988.

[4] s.92 Housing Act 1985.

[5] s.158 Localism Act 2011.

[6] s.159 Localism Act 2011

[7] reg.3 Transfer of Tenancies and Right to Acquire (Exclusion) Regulations 2012 SI 2012/696; see also para 7.3 of the Explanatory Memorandum to those regulations.

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