Assignment of assured and assured shorthold tenancies
Assignment of assured, assured shorthold, PRPSH demoted tenancies, and some agricultural tenancies depends on the terms of the tenancy agreement.
Whether an assured or assured shorthold tenancy can be assigned depends on what is contained in the tenancy agreement. The position regarding consent is different from other tenancies.
Agricultural tenancies that are fully protected by the Housing Act 1988 have the same rights of assignment as assured tenancies.
The position depends 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. In this case, landlords may withhold consent for any reason, whether reasonable or not. 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. 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.
Otherwise, where the tenancy agreement:
allows assignment freely and without consent, assignment is allowed
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
forbids assignment, an assignment would be a breach of the tenancy agreement and could be subject to possession action
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). The rules for PRPSH demoted tenancies are the same as for periodic assured and assured shorthold tenancies, that is, generally only with the landlord's consent.
In addition, tenants of a PRPSH (or of a housing trust that is a charity) can 'mutually exchange' with other tenants.
Mutual exchange – assignment of tenancy
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 applies:
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. Instead, each tenant's tenancy is brought to an end and a new tenancy is granted for their new property. 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. 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 their tenancy in accordance with that section if:
their tenancy is for a fixed term of less than two years
their tenancy is periodic
the rent payable under their tenancy is affordable rent, Intermediate rent, Mortgage Rescue rent or shared ownership rent
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 Secure tenancies and flexible tenancies.
Last updated: 12 March 2021
s.15(1) Housing Act 1988.
s.15(2) Housing Act 1988.
Ground 12, Sch.2 Housing Act 1988.
s.92 Housing Act 1985.
s.158 Localism Act 2011.
s.159 Localism Act 2011.
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.