Transferring the tenancy

A non-entitled civil partner or joint tenant can apply to the court for an order transferring the tenancy of the family home to him/her from the entitled civil partner or the other joint tenant. [1]

An application can be made for an order at any time or as an incidental order in proceedings for the dissolution of the civil partnership. [2] Any court orders regulating the occupancy rights of the civil partners will cease to have effect if the civil partnership is dissolved. [3]

In determining whether to grant an order transferring the tenancy, the court must consider:

• the suitability of the applicant

• the applicant's ability to undertake the obligations of the tenancy

• the conduct of the partners

• the respective needs and financial resources of the partners

• the needs of any child of the family

• whether the entitled partner has offered to provide the non-entitled partner with alternative accommodation. [4]

The landlord has to be informed of an application for the transfer of tenancy and have the opportunity of putting forward her/his views to the court. [5] This could be to object to the transfer happening, if for example there are rent arrears or to support an application of a civil partner who has custody of children.

If the court makes an order, the tenancy and all the obligations of the tenancy will be transferred to the non-entitled partner or the civil partner who made the application to the court. [6] If the tenancy is transferred from a sole tenant to the non-entitled civil partner, the non-entitled partner does not become liable for any rent arrears that the sole tenant had accrued. [7]

The court may order the new tenant to pay compensation to the old tenant on the transfer of a tenancy. [8]

A tenancy cannot be transferred under the Civil Partnerships Act 2004 where:

• the tenancy is tied to employment

• the property is part of an agricultural tenancy or croft

• it is a tenancy let on a long lease. [9]

Where the tenancy is a Scottish secure tenancy, a former civil partner, as well as the non-entitled civil partner can approach their landlord and ask her/him to seek a court order to evict the tenant in order to transfer the tenancy to them because of relationship breakdown. [10] The court has to be satisfied that is reasonable to evict and the landlord has to offer suitable alternative accommodation to the ex-tenant.

A voluntary agreement between the tenant, her/his civil partner and the landlord, or between joint tenants and the landlord, may be used to transfer the tenancy. In these situations the tenant or joint tenants end the tenancy and the landlord then reallocates the house as a sole tenancy.

This may be less likely to happen in cases of violent relationship breakdown because of the voluntary nature of the agreement will require the co-operation of both partners. However the landlord is often unlikely to agree where there are rent arrears.

If, after the transfer of the tenancy the new tenant partner occupies the property while the ex-tenant partner does not, the property will cease to be a family home. This means that the ex-tenant will lose all occupancy rights and will not be able to apply to the court for an order regulating those rights. [11] This will only be the case if the transfer takes place on or after 4 May 2006. [12]