Cohabiting tenants and staying in the home long term

There are several ways in which the tenancy can be transferred. The non-entitled partner can apply to the sheriff court for an order transferring a Scottish secure, assured, protected or common law tenancy into solely her/his name. [1] Alternatively the tenancy can be transferred voluntarily.

The court will not issue an order transferring the tenancy to the non-entitled partner:

• where the tenancy is tied to employment

• where house is part of an agricultural holding or a croft

• where a tenancy is let on a long lease or is part of the tenancy land of a tenant-at-will. [2]

If the non-entitled partner or a joint tenant applies to the court to become the sole tenant the Sheriff will consider a number of factors before deciding whether or not to grant a transfer. These include: [3]

• the conduct of the partners

• their respective needs and financial resources

• the needs of any children

• the extent to which the home is used in connection with any trade or business

• whether the joint tenant has offered the other suitable alternative accommodation.

The court will take account of the suitability of the non-entitled partner or the joint tenant to become the tenant and her/his capacity to perform the obligations of the lease, [4] for example, whether s/he has had problems in a previous tenancy of her/his own.

The landlord has to be informed of an application for a 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 taking place, for example if the tenant has rent arrears or possibly to support an application by a non-entitled partner who has 'custody' of the children.

If the sole tenant has rent arrears they are not transferable to her/his partner when the tenancy is transferred, however all other liabilities are. [6] This could be for example if there was still a sum outstanding for a rechargeable repair. [7] If there are rent arrears from the joint tenancy at the point of transfer to a sole tenancy, both partners remain jointly and severally liable for the arrears if the transfer takes place. [8]

Where the tenancy is a Scottish secure tenancy an ex-partner as well as the non-entitled partner or joint tenant 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. [9] The court has to be satisfied that it is reasonable to evict and the landlord has to offer suitable alternative accommodation to the ex-tenant, and again the ex-tenant will not have occupancy rights.

A voluntary agreement between the tenant or joint tenant, her/his partner and the landlord can be used to transfer the tenancy. In these situations the tenant or joint tenant ends the tenancy with her/his partner's consent and the landlord then reallocates the house to the non-entitled partner or to the other joint tenant. This may be less likely to happen in cases of violent relationship breakdown because of the voluntary nature of the agreement requiring the co-operation of both partners. However the landlord is often unlikely to agree where there are rent arrears that may mean either going to court using section 13 of the Matrimonial Homes Act or by seeking an assignation.

If an assignation takes place all the rights and obligations of the tenancy are given over to the assignee (the new sole tenant). It is important to note that any rent arrears owed by the tenant jointly would become the property of the new sole tenant.

If the tenancy is transferred or assigned to the non-entitled partner or one of the joint tenants on or after 4 May 2006 [10] and the ex-tenant subsequently ceases to occupy the tenancy then it will no longer be a family home. [11] The ex-tenant would have to apply to the court to have occupancy rights granted to her/him. Such rights would not, however, be granted unless s/he was still occupying the tenancy. [12]

Exclusion orders and/or orders regulating occupancy rights would cease to have effect after the tenancy transfer. This is due to the fact that the ex-tenant will not have any occupancy rights unless s/he applies and has such rights granted by the court. [13]

If the newly entitled partner had a domestic interdict against the ex- tenant then it would still be enforceable after the tenancy was transferred. [14] If they did not have such an interdict and the ex-tenant causes problems, on application to the court the now entitled partner may be able to obtain an interdict preventing the non entitled partner/ex tenant from entering the property altogether in terms of the Protection from Abuse (Scotland) Act 2001. [15]

The court may order the payment of compensation by the non-entitled partner or one of the joint tenants to the ex-tenant as part of the transfer order. [16]