tenancy services assignment

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• Handling Subleases and Assignments as a Landlord

After you have completed the often long process of screening and moving in a new tenant, sometimes tenants inform you that they wish to end their lease early, typically due to reasons such as a job change or moving in with a significant other. This can be disheartening when you have put in the work to get the vacancy filled, and it may be tempting to minimize the additional work you may have to do to get the unit rented again by agreeing to a tenant’s proposal to sublease or assign their tenancy to a new person of their choosing. While there can be benefits to subleases and assignments, and in some places you cannot outright ban or unreasonably refuse a sublease, there are some pitfalls to be aware of with both options, as well as an alternative that may be preferable. It has also become increasingly popular for tenants to use their units for short-term vacation rentals, a practice which additionally carries a number of downsides for landlords.

When a tenant wants to leave their lease early or temporarily, and proposes to have a substitute tenant of their choosing live in the rental in their place and pay rent to the original tenant, this is called a sublease. For example, your original tenant may be a college student who plans to study abroad for a semester, but wishes to return after that. Another example may be if the original tenant wishes to rent out part of the unit, perhaps just one bedroom, in order to help them cover their expenses. In order to give you more control of these situations should they arise, it is best to have a clause in your lease specifying whether subleases are allowed, and if so, setting forth a requirement for the tenant to obtain your written permission or meet other criteria before subleasing the rental. Be sure to check state and local law regarding subleases, as some jurisdictions do not allow you to unreasonably deny requests to sublease, even if your individual lease does not permit them. It is also wise to require a subtenant to undergo the same screening process as the original tenant with regard to credit history, income, and other factors, but as always you should not make your decisions based on discriminatory factors.

Landlords should thoroughly screen potential subtenants and assignees even if the time left on a lease or periodic rental agreement is short. A bad subtenant or assignee can wreak a lot of havoc in a short amount of time or even refuse to leave once the lease or rental agreement is up.

The primary advantage of allowing a sublease is that you will presumably have an uninterrupted stream of income for the rental unit, which won’t sit vacant while you find a new tenant. Especially if the sublease request has come from a good and trustworthy long term tenant, then it may be worthwhile to grant the request and trust their judgment regarding who the subtenant is, subject to meeting your screening requirements. Your original tenant will also remain responsible for any failure to pay rent during the subtenancy, as well as any damage to the property. The downsides of allowing a sublease include that because the original tenant, rather than you, will be the subtenant’s landlord, it may be difficult to enforce the terms of the lease in the event of any violations. The subtenant may also refuse to leave at the agreed-upon time, potentially making it necessary for you to evict both them and the original tenant.

Assignments

An assignment is similar to a sublease in that it involves someone new taking the place of the original tenant, but the original tenant in these cases does not intend to return. The assignee assumes the legal place of the original tenant in the lease, meaning that they are renting from you rather than the original tenant. This means that the assignee is typically responsible for all of the original tenant’s general obligations under the lease, which allows you to pursue legal action against them in the event of a violation. Further, if the assignee fails to pay rent , you can actually pursue payment from the original tenant. Therefore, an assignment allows you the advantage of an uninterrupted supply of income for the unit without requiring you to do as much work to find a new tenant, and permits you to hold the original tenant responsible if the assignee does not follow through on their obligation to pay rent.

• The original tenant remains liable for the rent (the subtenant is liable to the original tenant)
• The original tenant remains liable for lease violations
• The landlord must evict the original tenant in order to evict the subtenant

Assignment:

• The assignee becomes liable for the rent, and the original tenant is only liable if the assignee does not pay
• The assignee becomes liable for lease violations
• The assignee can be evicted for any reason for which the original tenant could have been evicted

Creating a New Tenancy

While allowing a sublease or assignment may be advisable in some situations, in many cases the best and simplest option is to terminate the original tenant’s lease in writing and begin a new lease with the new tenant. This may still allow you to take advantage of the original tenant’s legwork in identifying a replacement tenant provided that the new tenant meets your requirements, but gives all the parties the added benefit of clarity when it comes to the legal relationship between you and the new tenant, especially if things go awry after they move in.

Short-Term Rentals

Particularly in competitive rental markets and large cities, tenants are turning to short-term rental services like Airbnb to rent out the units they themselves rent, and make a profit by collecting a fee from their guests. Many landlords disfavor this practice due to the increased wear and tear on the rental, people they haven’t screened using their property, and possible liability issues, among other things. Further, a number of cities have begun to highly regulate if not outright prohibit short-term vacation rentals of this nature. If you do not wish to allow tenants to host short-term vacation renters, once you have checked your local laws on the topic, it is best to clearly prohibit this practice in your written lease or rental agreement, and distinguish this type of rental from more standard subleases.

Last reviewed October 2023

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• When Landlords Have a Legal Right of Entry to Rental Units
• Ending a Tenancy as a Landlord & Related Legal Considerations
• The Tenant Move-Out Process & Legal Requirements for Landlords
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This residential lease assignment is between , an individual (the " Original Tenant ") and an individual (the " New Tenant ").

On or about , the Original Tenant and (the " Landlord ") entered into a lease agreement (the " Lease ").

The Lease covers the property located at , , , and more particularly described as follows: (the " Premises ").

Under section of the Lease, the Original Tenant is permitted to assign its interest in the Lease, with the consent of the Landlord.

The Original Tenant wishes to assign to the New Tenant's his or her rights in, and delegate all of his or her obligations under, the Lease, and the New Tenant wishes to accept this assignment.

The parties therefore agree as follows:

1. ASSIGNMENT.

The Original Tenant assigns to the New Tenant of all his or her rights in, and delegates to the New Tenant all of his or her obligations under, the Lease. This transfer will become effective as of (the " Effective Date "), and will continue until the present term of the Lease ends.

2. ASSUMPTION OF RIGHTS AND DUTIES.

After the Effective Date, the New Tenant shall assume all rights and duties under the Lease, including the obligation to pay rent under the Lease when it is due.   The Original Tenant will have no further obligations under the Lease   The Original Tenant will remain bound to the Landlord under the Lease, notwithstanding the assignment . However, the Original Tenant remains responsible for obligations accruing before the Effective Date.

3. REIMBURSEMENT.

On or before the Effective Date, the New Tenant shall pay to the Original Tenant, which is the sum of:

• (a)  the security deposit held by the Landlord under the Lease; and
• (b)  the rent or other deposits paid in advance by the Original Tenant for any period after the effective date of this assignment.

4. INDEMNIFICATION.

• (a) The Original Tenant shall indemnify the New Tenant from all damages, liabilities, expenses, claims, or judgments (including interest and reasonable attorneys' fees) (collectively, "Claims" ) arising out of the Original Tenant's failure to perform his or her obligations under the Lease before the Effective Date.
• (b) The New Tenant shall indemnify the Original Tenant from all Claims relating to the Lease, except if those costs arise from the Original Tenant's failure to perform his or her duties under the Lease before the Effective Date.
• (c) The New Tenant shall indemnify the Original Tenant from all Claims attributable to the acts or omissions of the New Tenant or his or her agents, contractors, or employees with respect to the Premises or any activities on the Premises. This indemnification will survive the termination of the Lease and this assignment.

5. CONTINUING EFFECTIVENESS OF LEASE.

This assignment is made on the understanding that all other terms of the Lease remain in full effect, including the prohibition against further assignments and subleases without the Landlord's express written consent.

6. ORIGINAL TENANT'S REPRESENTATIONS.

The Original Tenant represents that he or she:

• (a) has the power and authority to enter into and carry out this assignment;
• (b) has not previously assigned his or her rights under the Lease;
• (c) is the lawful and sole owner of the interests assigned under this assignment;
• (d) the interests assigned under this assignment are free from all encumbrances;
• (e) except for the Landlord and the Original Tenant, there are no parties in possession or occupancy of the Premises or any part of them, and there are no parties with possessory rights on the Premises or any part of them; and
• (f) has performed all obligations and made all required payments under the Lease.

7. CONDITION OF PREMISES.

The New Tenant has examined and inspected the Premises and accepts them "as is" and in its present condition with all faults. Except as provided in this assignment, the Original Tenant makes no representations, covenants, or guaranties about the status, nature, or condition of the Lease or the Premises.

8. INTERPRETATION .

In interpreting the language of this assignment, the parties shall be treated as having drafted this assignment after meaningful negotiations. The language in this assignment will be construed as to its fair meaning and not strictly for or against either party.

9. GOVERNING LAW .

• (a) Choice of Law. The laws of the state of govern this assignment (without giving effect to its conflicts of law principles).
• (b) Choice of Forum. Both parties consent to the personal jurisdiction of the state and federal courts in County, .

10. AMENDMENTS.

No amendment to this assignment will be effective unless it is in writing and signed by a party or its authorized representative.

11. COUNTERPARTS; ELECTRONIC SIGNATURES.

• (a) Counterparts. The parties may execute this agreement in any number of counterparts, each of which is an original but all of which constitute one and the same instrument.
• (b) Electronic Signatures . This agreement, agreements ancillary to this agreement, and related documents entered into in connection with this agreement are signed when a party's signature is delivered by facsimile, email, or other electronic medium. These signatures must be treated in all respects as having the same force and effect as original signatures.

12. SEVERABILITY.

If any one or more of the provisions contained in this assignment is, for any reason, held to be invalid, illegal, or unenforceable in any respect, that invalidity, illegality, or unenforceability will not affect any other provisions of this assignment, but this assignment will be construed as if those invalid, illegal, or unenforceable provisions had never been contained in it, unless the deletion of those provisions would result in such a material change so as to cause completion of the transactions contemplated by this assignment to be unreasonable.

13. NOTICES.

• (a) Writing; Permitted Delivery Methods . Each party giving or making any notice, request, demand, or other communication required or permitted by this assignment shall give that notice in writing and use one of the following types of delivery, each of which is a writing for purposes of this assignment: personal delivery, mail (registered or certified mail, postage prepaid, return-receipt requested), nationally recognized overnight courier (fees prepaid), facsimile, or email.
• (b) Addresses. A party shall address notices under this section to a party at the following addresses:
• If to the Original Tenant:
• If to the New Tenant:
• (c) Effectiveness. A notice is effective only if the party giving notice complies with subsections (a) and (b) and if the recipient receives the notice.

14. WAIVER.

No waiver of a breach, failure of any condition, or any right or remedy contained in or granted by the provisions of this assignment will be effective unless it is in writing and signed by the party waiving the breach, failure, right, or remedy. No waiver of any breach, failure, right, or remedy will be deemed a waiver of any other breach, failure, right, or remedy, whether or not similar, and no waiver will constitute a continuing waiver, unless the writing so specifies.

15. ENTIRE AGREEMENT.

This agreement constitutes the final agreement of the parties. It is the complete and exclusive expression of the parties' agreement about the subject matter of this agreement. All prior and contemporaneous communications, negotiations, and agreements between the parties relating to the subject matter of this agreement are expressly merged into and superseded by this agreement. The provisions of this agreement may not be explained, supplemented, or qualified by evidence of trade usage or a prior course of dealings. Neither party was induced to enter this agreement by, and neither party is relying on, any statement, representation, warranty, or agreement of the other party except those set forth expressly in this agreement. Except as set forth expressly in this agreement, there are no conditions precedent to this agreement's effectiveness.

16. HEADINGS.

The descriptive headings of the sections and subsections of this assignment are for convenience only, and do not affect this agreement's construction or interpretation.

17. EFFECTIVENESS.

This assignment will become effective when all parties have signed it. The date this assignment is signed by the last party to sign it (as indicated by the date associated with that party's signature) will be deemed the date of this assignment.

18. NECESSARY ACTS; FURTHER ASSURANCES.

Each party shall use all reasonable efforts to take, or cause to be taken, all actions necessary or desirable to consummate and make effective the transactions this assignment contemplates or to evidence or carry out the intent and purposes of this assignment.

[SIGNATURE PAGE FOLLOWS]

Each party is signing this agreement on the date stated opposite that party's signature.

ORIGINAL TENANT

[PAGE BREAK HERE]

LANDLORD'S CONSENT AND RELEASE

As Landlord under the Lease, I hereby consent to this assignment of the Lease, and to the New Tenant's assumption of the Original Tenant's obligations under the Lease, including the obligation to pay rent when it is due. As of the Effective Date, I release the Original Tenant from all liability for obligations (including rent payments) under the Lease. However, the Original Tenant remains primarily obligated as tenant under the Lease and I do not waive or relinquish any rights under the Lease against either the Original Tenant or the New Tenant.

Attach a copy of the Lease as Exhibit A

Free Assignment of Residential Lease Template

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C hang i ng te n ants

Assignment of tenancy

Sometimes it is possible for a tenant to end their tenancy by transferring their tenancy to another tenant (called assignment).

From 11 February 2021, a tenancy agreement cannot contain a clause prohibiting assignment (unless it is a social housing provider) ( s 43A RTA ).

If the tenant wants to assign the tenancy to another tenant they will need to get written agreement from their landlord to remove their name from the tenancy agreement and replace their name with another tenant from a particular date. The landlord can not unreasonably withhold their consent for this ( s 43B RTA ).

Tenancy Services provide this template letter that tenants can use to request an assignment of their tenancy.

On the date the new tenant takes over, the original tenant is no longer responsible for the tenancy. They will still need to pay any money they owe to the landlord from before that date.

In the case of a periodic tenancy, it is generally a better option for the tenant to end the tenancy without reason with 28 days’ notice, than it is to assign the tenancy to a new tenant.

What to do if the landlord withholds consent for assignment

The landlord cannot unreasonably withhold consent to assign a tenancy to a new tenant. There are only a limited range of issues that the landlord should consider when deciding whether to withhold consent. These could include:

• whether there is a reasonable basis for the tenant’s request
• the impact on the landlord (eg, lost revenue, time, etc)
• whether there are any problems with the new tenant eg, poor credit or references.

The tenant can mitigate the likelihood of a landlord withholding consent by addressing these issues when making the request to assign the tenancy. This might include providing references for the new tenant and offering to pay reasonable expenses.

If the landlord withholds consent, or takes too long to respond to the request of the tenant, this is an unlawful act and the tenant can apply to the Tenancy Tribunal to have the issue resolved.

In the case of a fixed-term tenancy where the landlord withholds consent for assignment and the tenant considers this is unreasonable, the tenant might want to suggest ending the fixed-term tenancy early by agreement as an alternative, before taking the matter to the Tenancy Tribunal.

• Ending a fixed term tenancy
• What to do at the end of a tenancy

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Demystifying Assignment of Lease: Your Go-To Guide

LegalGPS : July 29, 2023 at 8:17 AM

When you’re talking about property leasing, it’s important to understand that there are a lot of terms and concepts that you may have never heard before. One of them is the assignment of lease, which refers to a situation where a tenant transfers their rights and responsibilities under the lease agreement to another party.

What is an Assignment of Lease, and why is it so crucial?

An Assignment of Lease is a term you may have heard thrown around, especially if you're involved in rental properties. It’s a pretty important document. But what exactly is it? Well, in simple terms, an Assignment of Lease is an agreement where the original tenant of a property transfers their leases and all of its rights and obligations to a new tenant. Now, you might be wondering, "When would this scenario ever occur?"

Let's imagine you're a tenant who signed a three-year lease for an office space. However, two years in, you need to relocate due to unprecedented growth of your business. Instead of breaking the lease, you might choose to assign your lease to another business looking for office space. This means that you, as the original tenant, no longer have any obligations under the lease. The new tenant is now responsible for paying rent and complying with all of the terms of the previously signed agreement.

Now that you understand, let's get into the step-to-step guide on how to create an Assignment of Lease!

Steps to Write an Assignment of Lease

Creating a thorough Assignment of Lease agreement doesn't need to be an overwhelming task. Simply follow these steps to ensure your agreement is both comprehensive and legally binding:

Step 1: Identify the Parties

The information of each party should be included. For the existing tenant (the assignor), make sure to include:

Full legal name or business name

Postal mailing address

Phone number and email address

Do the same for the new tenant (the assignee). Make sure all the information is up-to-date and accurate to avoid any unnecessary confusion or disputes. For example, if the assignor is a business, make sure they have updated their mailing address with the post office to reflect their new building location. If a party has multiple addresses, be sure to list them all.

Step 2: Specify the Lease

This section requires exact information from the original lease agreement, including:

Property address and description

Lease start and end date

A reference to the original lease agreement (for instance, a sentence like "the lease agreement dated...")

Remember to include a copy of the original lease as an attachment to ensure the assignee understands the terms they're adhering to. If not already included in the original lease agreement, be sure to add the following information: Description of rental property, Lease term (how long the lease is good for), Rent amount, and Security deposit amount.

Step 3: Detail the Assignment

State that the assignor is transferring all their interests and obligations in the lease to the assignee. Here, write something like:

"The Assignor hereby assigns, transfers, and conveys to the Assignee all of the Assignor's rights, title, and interest in and to the Lease, together with all the Assignor's obligations, liabilities, and duties under the Lease."

This means that the assignor is transferring all of their interests and obligations in the lease to the assignee. This includes any future rent payments, repairs and maintenance responsibilities, notices of default by either party, and so on.

Step 4: Landlord's Consent

Many leases require the landlord's consent to assign the lease. The assignor should request written consent from the landlord and include a clause like:

"The assignment of the lease is not valid unless and until the landlord provides written consent."

This is followed by a place for the landlord to affirm consent by signing or initialing. This is important because the landlord can elect to withhold consent and the assignment will not be valid. If this is the case, you may need to provide additional consideration for your landlord's assent (for example, an increase in rent).

Step 5: Assignee Acceptance

Include a statement in which the new tenant agrees to the assignment and the terms of the lease. It may look like:

"The Assignee hereby accepts this assignment, assumes all duties and responsibilities under the Lease, and agrees to perform all of the Assignor's obligations under the Lease."

You need to do this because the new tenant needs to have an affirmative acceptance of the assignment in order for it to be valid. This is typically done through a letter from the assignee stating that they agree to perform all of your obligations under the lease.

Step 6: Signature and Date

Every binding legal document needs a date and a signature. Make sure that there is a proper place for the assignor and the assignee to sign and print their names, with a line for the date.

By following these clear, actionable steps, you'll be able to construct an effective Assignment of Lease agreement. Remember, every situation is unique, so adjust the template as necessary, being sure to include all relevant details.

Clear so far? Great! Now, let's focus on the tips to draft a perfect Assignment of Lease.

Tips to Draft a Perfect Assignment of Lease

Accurate Dates: Be sure to include the date when this agreement will take effect. Precision avoids any confusion about durations, when the assignee takes over, or when the assignor's obligations end.

Clear Terms: This document should restate the terms of the original lease. The assignee needs a clear understanding of what they're stepping into. Bit ambiguous? Think of it like this: the assignee should be able to step into the assignor's shoes comfortably.

Specify Rent Terms: Stating the rent amount, due dates, and method of payment in the assignment helps create a record of the agreed-upon rent terms, ensuring no misunderstanding arises in the future.

Specify the Term: The assignment should state how long the new lease lasts. For example, if the original lease is for one year, then the assignee will assume only a one-year term.

Specify Other Conditions: If there are other conditions in place—such as tenant improvements or utility allowances—then specify these too.

An assignment of lease doesn't have to be a formidable task to overcome. With a cautious and considered approach, these documents can be a smooth and seamless part of managing a successful lease transition.

Our contract templates can offer you even more support, empowering you towards crafting an excellent and individualised Assignment of Lease ready for your task. So why not take your next step towards leasing success and check them out today? Click here to get started!

Free Lease Assignment Agreement Template for Microsoft Word

Download this free Lease Assignment Agreement template as a Word document to easily assign a lease to another party with consent from the landlord.

Lease Assignment Agreement

THIS ASSIGNMENT OF TENANCY AGREEMENT dated this [Insert date]

[Insert name] (the “Assignor”)

– AND-

[Insert name] (the “Assignee”)

A. This is an agreement (the “Assignment”) to assign a residential tenancy agreement in real property according to the terms specified below.

B. The Assignor wishes to assign and transfer to the Assignee that tenancy agreement (the “Tenancy Agreement”) dated June 11, 2020, and executed by the Assignor as tenant and by _________________________ as landlord (the “Landlord”).

IN CONSIDERATION OF the Assignor agreeing to assign and the Assignee agreeing to assume the Tenancy Agreement for the Premises, and other valuable consideration, the receipt and sufficiency of which is hereby acknowledged, both parties agree to keep, perform and fulfill the promises, conditions and agreements below:

1. The Tenancy Agreement governs the rental of the following described premises (the “Premises”) to the Assignor: ______________________________________________

Assigned Tenancy Agreement

2. The Assignor assigns and transfers to the Assignee all of the Assignor’s right, title, and interest in and to the Tenancy Agreement and the Premises, subject to all the conditions and terms contained in the Tenancy Agreement.

Effective Date

3. This Assignment takes effect on June 11, 2020 (the “Effective Date”), and continues until the present term of the Tenancy Agreement expires on June 11, 2020.

Assignor’s Interest

4. The Assignor covenants that:

a. the Assignor is the lawful and sole owner of the interest assigned under this Assignment; b. this interest is free from all encumbrances; and c. the Assignor has performed all duties and obligations and made all payments required under the terms and conditions of the Tenancy Agreement.

Breach of Tenancy Agreement by Assignee

5. Consent to this Assignment will not discharge the Assignor of its obligations under the Tenancy Agreement in the event of a breach by the Assignee.

6. In the event of a breach by the Assignee, the Landlord will provide the Assignor with written notice of this breach and the Assignor will have full rights to commence all actions to recover possession of the Premises (in the name of the Landlord, if necessary) and retain all rights for the duration of the Tenancy Agreement provided the Assignor will pay all accrued rents and cure any other default.

Governing Law

7. It is the intention of the parties that this Assignment, and all suits and special proceedings under this Assignment, be construed in accordance with and governed, to the exclusion of the law of any other forum, by the laws of the State of New South Wales, without regard to the jurisdiction in which any action or special proceeding may be instituted.

Miscellaneous Provisions

8. This Assignment incorporates and is subject to the Tenancy Agreement, a copy of which is attached hereto, and which is hereby referred to and incorporated as if it were set out here at length. The Assignee agrees to assume all of the obligations and responsibilities of the Assignor under the Tenancy Agreement.

9. This Assignment will be binding upon and inure to the benefit of the parties, their successors, assigns, personal representatives, beneficiaries, executors, administrators, and heirs, as the case may be.

10. All rents and other charges accrued under the Tenancy Agreement prior to the Effective Date will be fully paid by the Assignor, and by the Assignee after the Effective Date. The Assignee will also be responsible for assuming and performing all other duties and obligations required under the terms and conditions of the Tenancy Agreement after the Effective Date.

11. There will be no further assignment of the Tenancy Agreement without the prior written consent of the Landlord.

IN WITNESS WHEREOF the Assignor and Assignee have duly affixed their signatures under hand and seal on this [Insert date]

SIGNED BY THE ASSIGNOR

_____________________________ Assignor: _________________________

in the presence of (Name of witness) _______________________

(Signature of witness) _____________________________

SIGNED BY THE ASSIGNEE _____________________________ Assignee: _______________________

in the presence of (Name of witness) ___________________

(Signature of witness) _______________________________

CONSENT OF LANDLORD

The Landlord in the above Assignment of Tenancy Agreement executed on [Insert date] consents to that Assignment. The Landlord also agrees to the Assignee assuming after [Insert date] the payment of rent and performance of all duties and obligations as provided in the Tenancy Agreement. Dated: [Insert date]

Landlord: _________________________

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Suggestions

Assignment of a tenancy

Requirements and formalities for assigning a tenancy, and liability for rent arrears of old and new tenants.

What is assignment

Rights to assign, prohibition and consent, how to assign a tenancy, arrears and assignment.

Assignment is a way that a tenant can transfer their tenancy to another person.

On assignment, the assignor's legal interest in a property is passed to the assignee who takes over that interest and becomes the tenant. All the terms of the original tenancy agreement apply to both the new tenant and the landlord, including the amount of rent payable.

Where a tenant grants someone a tenancy and remains a tenant of the original landlord this won’t be an assignment. Instead a subtenancy is created, and the original tenant becomes the landlord of the new tenant.

Whether assignment is possible will depend on:

the type of tenancy

what the tenancy agreement says

whether the landlord agrees

Under section 1(1) of the Law of Property Act 1925 all tenants, including those with a long lease, have a legal estate (an interest) in land. With this comes a general right to assign that estate to another person.

For many types of tenancy this general right is modified by statutory provisions that limit when and to whom the tenancy can be assigned. This will override the general right to assign.

Joint tenancies can be assigned but are still subject to the statutory rules for that type of tenancy. [ 1 ]

A tenancy agreement can also limit when and how a tenancy can be assigned. For example, by requiring the landlords consent.

Find out more about rights to assign for:

secure, flexible and introductory tenancies

assured and assured shorthold tenancies

regulated tenancies

Licences are not a legal interest in land and cannot be assigned.

If the tenancy agreement says nothing about assignment then, subject to any statutory limitations, the tenant is free to assign.

In most cases, the tenancy agreement will only allow assignment if the landlord gives their consent (a qualified prohibition).

If the tenancy agreement states that assignment is not allowed (an absolute prohibition), the tenant can still assign but they will be in breach of the tenancy. 

Qualified prohibition

If the tenancy agreement contains a qualified prohibition stating that the tenant may not assign without the landlord's consent, then the landlord cannot ‘unreasonably withhold’ consent. [ 2 ] This is an implied term of the agreement.

Whether consent has been unreasonably withheld will depend on the facts of the case. [ 3 ]

The courts have previously held that:

the purpose of a term in a tenancy agreement prohibiting assignment without the landlord's consent is to protect landlords from having their premises occupied in an undesirable way or by an undesirable assignee. The landlord cannot refuse consent on grounds that have nothing to do with the relationship of landlord and tenant, but can refuse if the potential assignee is not, for example, financially sound [ 4 ]

it may be reasonable for a landlord to refuse consent because of the purpose for which the assignee intends to use the premises, even if that purpose is not forbidden by the original tenancy agreement [ 5 ]

although landlords need only usually consider their own interests, there may be cases where there is such a disproportion between the detriment to the landlord and the detriment to the assigning tenant that it would be unreasonable for the landlord to refuse consent. [ 6 ] An example of this might be where the property is very difficult to assign and the tenants would have great difficulty in finding another potential assignee, whereas the landlord's loss in accepting the proposed tenant is minimal

The court has held that consent was not considered to be unreasonably withheld where the tenant had arrears. [ 7 ]

For tenancies granted after 1 January 1996, a landlord has the right, in certain circumstances, to require that the tenant wishing to assign should act as the guarantor of the new assignee where it is reasonable to do so. [ 8 ]

Discrimination

The Equality Act 2010 makes it unlawful for a landlord to refuse consent on the grounds of a protected characteristic (disability, gender reassignment, pregnancy or maternity, race, sex, sexual orientation, and religion or belief). [ 9 ]

A person who has the right to dispose of premises must not unlawfully discriminate against any person on the basis of any of the above protected characteristics by: [ 10 ]

the terms on which they offer to dispose of the premises

declining to dispose of the premises, or

the way in which they treat a person seeking to move in to the premises

The right to dispose of premises includes the right to assign. [ 11 ]

Getting the landlords consent

If a tenancy is assigned without consent where the agreement requires it, this provide a ground for possession against the new tenant.

It is not possible to argue that the landlord could not have reasonably refused consent after the assignment has taken place. [ 12 ]

The Landlord and Tenant Act 1988 introduced a procedure that can be followed to obtain consent. It applies where the tenancy agreement contains a qualified prohibition against assignment. The Act only applies to applications for consent made after 29 September 1988. It does not apply to secure tenancies.

The tenant must serve a written application for consent to assign on the landlord, and the landlord must reply in writing within a reasonable time (the Act does not define what is a reasonable time), giving consent unless it is reasonable not to do so.

If consent is refused, the landlord must give the tenant reasons for the refusal. [ 13 ] If the landlord does not reply or withholds consent unreasonably, the tenant will be able to take a civil action for damages against the landlord for breach of this duty. [ 14 ] The onus of proof that any refusal of consent was reasonable is on the landlord. [ 15 ]

Tenants could also seek a declaration that the landlord is acting unreasonably where they do not want to take the risk of assigning without consent. Alternatively, the tenant could combine a claim for damages for breach of statutory duty with one for an injunction requiring the landlord to comply with their duty.

Assignment without consent or where prohibited

Where the tenancy agreement has an absolute or qualified prohibition against assignment and the tenant assigns the tenancy without the landlord's consent, the assignment will still be effective as long as it is by deed. [ 16 ]

However, the landlord may be able to bring possession proceedings against the new tenant.

In order for an assignment to be legal, it must be made by deed. A deed is a written document that has been signed and labelled 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.

A deed is required even where the original tenancy was agreed orally. [ 17 ]

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. [ 18 ]

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.

The new tenants should keep the deed of assignment in to prove the assignment took place. It’s also a good idea for the outgoing tenant to have a copy in case of any disputes.

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. [ 19 ] 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.

The new tenant is not liable for rent arrears that accrued before they took over the tenancy. [ 20 ]

An assignee is not legally liable to meet the contractual terms of the original tenant's agreement with the landlord where the liability arose before the assignment.

The original tenant is the only person who can legally be sued for any arrears existing at the time of assignment.

In practice, some local authorities require the assignee to clear any existing arrears. An Ombudsman's decision held that an agreement to clear arrears could be deemed to constitute an illegal premium, and enforceability of the agreement would be by no means certain. [ 21 ]

Arrears after assignment

For tenancies arising on or after 1 January 1996, [ 22 ] normally only the assignee can be held liable for rent due after the assignment.

The exception is where either:

there is a prohibition against assignment and the landlord's consent should have been obtained and was not

the original tenant agreed to act as a guarantor of the new assignee

Where the tenancy was created prior to 1 January 1996 (or in one of the other cases mentioned above), the landlord can take action for arrears against either the assignee or the assignor.

However, if the landlord wishes to take action against the assignor, they must notify the assignor of the arrears on a prescribed form within six months of the arrears falling due. [ 23 ] The assignor will be able to sue the assignee if they have to pay the rent arrears, as there is an implied term in all deeds of assignment that indemnifies the assignor. [ 24 ]

Last updated: 12 March 2021

Burton v Camden LBC [2000] UKHL 8.

s.19(1)(a) Landlord and Tenant Act 1927.

Braun v Westminster Anglo-Continental Investment Co Ltd [1975] 240 EG 927.

Gibbs and Houlder Bros and Co. Ltd Lease, Houlder Bros and Co. v Gibbs [1925] Ch 575, CA.

Rossi v Hestdrive Ltd [1985] 1 EGLR 50.

International Drilling Fluids Ltd v Louisville Investments (Uxbridge) Ltd [1986] Ch 513.

Greenwood Reversions Ltd v World Environment Foundation Ltd and Mehra [2008] EWCA Civ 47.

s.16 Landlord and Tenant (Covenants) Act 1995.

ss.2-8 and s.32(1) Equality Act 2010.

s.33(1) Equality Act 2010.

s.38 Equality Act 2010.

Hendry v Chartsearch Ltd, The Times, 16 September 1998 CA.

s.1(3) Landlord and Tenant Act 1988.

s.4 Landlord and Tenant Act 1988.

s.1(6)(c) Landlord and Tenant Act 1988.

See for example the assured tenancy case of Sanctuary Housing Association v Baker (1997) 30 HLR 809.

ss.52-53 Law of Property Act 1925.

Crago v Julian (1991) 24 HLR 306 CA.

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

s.17 Landlord and Tenant (Covenants) Act 1995.

Ombudsman Investigation 90/B/1668, 5 December 1995, Wellingborough BC.

s.5 of the Landlord and Tenant (Covenants) Act 1995

s.77 and Parts 7, 8, and 9 of Sch.2 Law of Property Act 1925.

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Tenancies can sometimes be passed from one tenant to another person, depending on the circumstances and your relationship:

• after a tenant has died, then a surviving spouse, partner or relative may be able to take over the tenancy and this is called “succession”; or
• while the tenant is still living, a transfer between household members is called “assignment”.

In both situations, the law is quite complicated and will depend on what sort of tenancy arrangement the tenant has, who the landlord is, when the tenancy was taken out, what the tenancy agreement says and how long the person who hopes to take over the tenancy has been living there.

Legal advice on assignment of a tenancy

In some situations, the tenant is allowed to assign the tenancy to another family member without the landlord needing to consent or agree to the assignment and the process can be dealt with by the drawing up of a deed.

In other situations, the landlord’s consent will be required. Some tenancies cannot be assigned at all, or only to a spouse or partner.

The law is complicated and expert legal advice will be required to work out if a tenancy can be assigned and to draw up the necessary documentation.

Legal advice on succession of a tenancy

If a landlord considers that there are no persons in the household who are entitled to succeed to the tenancy after the death of the tenant, they may serve a notice and then start possession proceedings for eviction.

Dealing with a bereavement of a loved one can be made even harder to cope with if you are also worried about losing your home.

Our team have extensive experience in advising bereaved family members about their rights to succeed to a relatives’ tenancy and can help at all stages including initial advice, putting the case to the landlord prior to proceedings and then representation in proceedings if necessary.

Funding the cost of legal advice

• In respect of assignment – Legal Aid is not available for advice and representation and these cases will need to be paid for privately. We are able to offer fixed fee packages for this work.
• In respect of succession rights – Legal Aid is available (subject to your means and the merits of the case) for advice and representation after a landlord has served a notice and has indicated that they intend to bring possession proceedings.

If no notice has been served, then legal aid is not available, and we will have to consider other ways of funding your case including a fixed fee package if appropriate.

Contact us for expert legal advice

Based near Liverpool Street station in East London, we advise people right across London and beyond. We offer a comprehensive service, from initial advice to representation at court. The housing team is a member of the Housing Law Practitioners Association.

Contact our housing and property lawyers  today, we are ready and waiting to help.

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Lou crisfield, rajea sultana, jasper blumenthal, kate downing, trainee solicitor.

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Need to find a place to stay in Moscow City Centre for a few months and looking for a furnished apartment? The accommodation offered on Flatio is ideal for employee accommodation on a business trip or corporate apartments, expats in business flats, digital nomads needing fully furnished apartments for rent, and even Erasmus students who need university summer accommodation. We offer fully furnished apartments complete with Wi-Fi directly from the owners and other landlords. With Flatio you can find apartment for rent for two weeks, a month, or even for one whole year. All utilities are included in the rent. Our offer is varied and includes both affordable rentals and luxury accommodation. Concluding the rental contract is simple and easy – you do it all online, and the next day you can feel free to move right into your new place.

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