Assignment of a tenancy
When a tenant can transfer their tenancy to another person using an assignment by deed.
What is tenancy assignment?
Assignment is when a tenant transfers their tenancy to another person. A tenancy is assigned using a deed.
A tenant might use assignment to:
pass on their tenancy before their death
transfer their tenancy after a relationship breakdown
swap homes with another tenant by mutual exchange
The person who is assigned the tenancy becomes the tenant of the landlord under the same agreement.
A tenant's right to assign depends on their tenancy type.
Council tenancy assignment rights
A secure or flexible tenant can only assign their tenancy if either:[1]
they assign by mutual exchange
they assign to a potential successor
the court orders assignment in family law proceedings
A flexible tenancy is a type of secure tenancy granted for a fixed term.
When a flexible tenant assigns their tenancy the fixed term continues. For example, if they assign the tenancy three years into a five year fixed term, the assignee has two years remaining on the tenancy.
An introductory tenant can only assign under family law proceedings or to a potential successor.[2] A demoted tenant can only assign under family law proceedings.[3]
An attempt to assign for any other reason does not transfer the tenancy. The tenancy remains with the original tenant. If the original tenant moves out and no longer occupies the property as their only or principle home, the landlord can end the tenancy by serving a notice to quit.
Social tenancy mutual exchange
Secure and flexible tenants can swap their tenancy with another social tenant in some cases. Mutual exchanges can only happen with the consent of both landlords.
Find out more about mutual exchange.
Assignment to a potential successor
Some people have a right to succeed to a tenancy when the tenant dies. For example, their spouse or another family member. The successor inherits the tenancy.
A sole tenant can assign their tenancy before their death rather than wait for a succession. They must assign it to someone who would qualify to succeed if the tenant died.[4] Find out more about who qualifies for council tenancy succession.
A joint tenant cannot assign to a potential successor.[5] When a joint tenant dies, the surviving tenant inherits the tenancy by survivorship.[6]
The assignment must happen while the property is the original tenant's only or principal home. The tenancy loses its security of tenure if the tenant moves out before assignment.
An assignment to a potential successor counts as a succession. There can usually be no further succession when the new tenant dies.[7]
Assigning to a potential successor prevents the landlord from obtaining possession on ground 15A for underoccupancy. The landlord can only use ground 15A after a succession. Find out more about ground 15A.
Assignment in family law proceedings
The court can order tenancy assignment in family law proceedings.[8] For example, during divorce proceedings.
This might change a joint tenancy to a sole tenancy, or sign a tenancy over to the person who still lives in the property.
When the tenant needs their landlord's consent to assign
A tenant must have their landlord's consent for a mutual exchange to swap their tenancy. Read more about mutual exchanges.
When assigning to a potential successor or in family law proceedings, the tenant does not need their landlord's agreement to assign unless their tenancy says consent is required. Where this is a term in the tenancy, the tenant should ask their landlord for consent before assignment. They should state they are asking as a formality, because they are exercising a statutory right to assign and the landlord must not unreasonably withhold consent.[9]
When the tenancy requires consent and the tenant assigns without their landlord's agreement, the landlord might start possession proceedings for a breach of the tenancy. They can serve a notice on a discretionary ground. The court should consider whether it is reasonable to order possession when the tenant correctly assigned using a statutory right.
Find out more about secure tenancy grounds for possession.
Assured or assured shorthold tenancy assignment rights
An assured or assured shorthold tenancy can be assigned if either:
a housing association tenant assigns their tenancy by mutual exchange
a tenant assigns the tenancy in line with their tenancy terms
Find out more about mutual exchange.
Fixed term tenancy
Most tenancies start with an initial fixed term period, such as six months.
Where a tenancy does not mention assignment, the tenant can assign without their landlord's consent.
Where it allows assignment with consent, the tenant needs their landlord's agreement to assign and the landlord cannot unreasonably withhold consent[10]
Statutory periodic tenancy
A statutory periodic tenancy starts automatically when a fixed term expires.
The tenant needs their landlord's consent to assign. The landlord can refuse for any reason.[11]
Contractual periodic tenancy
Some tenancies start as periodic with no fixed term, or state they continue as periodic after a fixed term. These are contractual periodic tenancies.
Where the agreement does not mention assignment, the tenant needs the landlord's agreement to assign and the landlord can refuse for any reason.[12]
Where it allows assignment with consent, the the tenant needs the landlord's agreement to assign and the landlord cannot unreasonably withhold consent.[13]
A premium is a payment for a tenancy other than rent. A premium includes a tenancy deposit greater than two months' rent.[14] Where a contractual periodic tenant paid a premium and the tenancy does not mention assignment, the tenant can assign without their landlord's consent.
When a landlord unreasonably withholds consent
When a fixed term or contractual periodic tenancy allows assignment with consent, the tenant can apply for consent in writing. The landlord must reply within a reasonable time. If they refuse to consent, they must give reasons.[15] The landlord cannot refuse unreasonably.
What is considered unreasonable depends on the facts.[16] For example, the courts held it is reasonable to withhold consent when the existing tenant has arrears or the new tenant is not financially sound.[17]
Assignment without the landlord's consent
A tenant might need their landlord's agreement but decide to assign without consent. The assignment happens if the tenant uses a deed, but the tenant has breached their tenancy agreement.[18]
The landlord can start possession proceedings for a breach of the tenancy. They can serve a notice on a discretionary ground. At the court hearing, the court must be satisfied it is reasonable to grant possession.
Find out more about assured tenancy grounds for possession.
Regulated tenancy assignment rights
A regulated tenancy has two stages:
the initial contractual tenancy, which can be for a fixed term or periodic
the statutory tenancy that starts when the contractual tenancy ends
Landlords have not been able to grant new regulated tenancies since 1989 so most tenants now have statutory tenancies.
Find out more about regulated tenancies.
Contractual regulated tenancy
A tenant can assign their contractual tenancy with their landlord's consent. If the tenant does not get consent the landlord can seek possession.[19] A landlord can consent after assignment.[20]
Statutory regulated tenancy
A statutory tenancy can only be assigned by the court in family law proceedings.
A statutory tenant can request a transfer, where one statutory tenant is substituted for another.[21] The landlord must give consent and can refuse for any reason.
Deed of assignment
A tenancy should be assigned using a valid deed.[22]
The document must be labelled as a deed and signed by each party. It must include the:
name and address of the original tenant
name and address of the new tenant
words "signed as a deed"
landlord's details
An independent person must witness the signatures of the original tenant and new tenant, and sign the document as a witness. The same person can witness all the signatures.
Both tenants should keep a copy of the deed to prove the assignment happened.
Assignment without a deed
In most cases, a tenancy is not assigned if a deed is not completed.[23]
An assignment could still be valid if the parties intend to assign a tenancy but the deed is not executed correctly.[24] This is called equitable assignment. If there is a dispute between the parties or with the landlord, the court must decide if the assignment is valid.
Liability for rent arrears after assignment
The new tenant is not liable for rent arrears that accrued before they took over the tenancy.[25] In most cases they are liable for rent arrears that accrue after assignment.[26]
The original tenant is liable for arrears existing at the time of assignment. They might be liable for rent arrears accrued after assignment where either:
the tenancy started before 1 January 1996
they agreed to act as a guarantor for the new tenant
the tenancy agreement prohibits assignment and the landlord did not agree to assignment
The landlord could make a claim against the original tenant for arrears that accrued after the assignment. The landlord must notify the original tenant of the arrears on a prescribed form within six months of the arrears falling due.[27]
Last updated: 29 August 2024