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How to assign a tenancy

This content applies to England

The requirements for assigning a tenancy.

Legal assignment

In order for an assignment to be legal, it must be made by deed, ie a written document that has been signed 'as a deed' and witnessed. This is necessary in order for the assignment to bind the landlord and any other party affected by the assignment but not part of the agreement to assign. The deed of assignment would need to be kept by the new tenant(s) in case s/he needs to prove that the assignment has taken place, although it would be a good idea for the outgoing tenant(s) to have a copy of it. A deed will be required even where the original tenancy was agreed orally.[1]

In one case, even though the tenant had undertaken in divorce proceedings to transfer the tenancy into his wife's name, the fact that there was no deed meant that an assignment was found not to have occurred. Nothing was done to transfer the tenancy into the wife's name, although she continued to live in the flat on her own and pay the rent. When she asked the managing agents to put the rent book in her name, they recovered possession of the property.[2]

The deed must give the name(s) and address of the original tenant(s) and the new tenant(s) (the address might be the same, depending on the situation). It must also give the details of the landlord. An independent person must witness the signatures of the original tenant(s) and the new tenant(s), but the same person can witness all the signatures.

Equitable assignment

An attempt to assign a tenancy without satisfying all the formalities of a deed may still be effective as equitable assignment if the agreement to assign is evidenced in writing.[3] The equitable assignment will bind the parties who signed the written agreement and make them liable to damages for breach of contract as well as to orders for specific performance.

[1] ss.52-53 Law of Property Act 1925.

[2] Crago v Julian (1991) 24 HLR 306 CA.

[3] s.2 Law of Property (Miscellaneous Provisions) Act 1989.

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