Transfer of tenancy

In the case of a married couple, the non-tenant spouse or joint tenant can apply to the court to become the sole tenant, under section 13 of the Matrimonial Homes (Family Protection) (Scotland) Act 1981. The court will consider a number of factors before deciding whether or not to grant a transfer. These include the conduct of the spouses and the needs of any children. [1] The landlord also has the opportunity of putting his views to the court. [2] A cohabitee will have to apply to court for occupancy rights before applying for a transfer of tenancy under section 13 of the Act.

Occupancy rights still exist for spouses who become ex-tenants when a section 13 transfer of tenancy takes place. If the couple are still married when the transfer is granted the previously entitled spouse becomes the non-entitled spouse and retains occupancy rights in the matrimonial home. Thus the new tenant may need to go to court for an exclusion order and a matrimonial interdict with powers of arrest to exclude the ex-tenant from the matrimonial home and to keep her/him away.

For more information, please see the section on married tenants and the section on cohabiting tenants.

A non-entitled civil partner or joint tenant can apply to the court to become the sole tenant of the family home. [3] The court will consider a number of factors before deciding whether or not to grant the transfer. These include the conduct of the partners and the needs of any children. [4] The landlord also has the opportunity of putting his views to the court. [5]

If both partners are still living in the family home after the tenancy has been transferred, the new tenant will be the entitled partner and the old tenant will be the non-entitled partner. As a non-entitled partner has occupancy rights [6] it would be necessary to seek an exclusion order before s/he could be excluded from the family home. [7]

For more information, please see the section on civil partner tenants.

Where the tenancy is a Scottish secure tenancy, spouses, civil partners, former-spouses, former-civil partners or cohabitees (including same sex cohabitees) can approach the landlord and ask her/him to seek a court order to evict the tenant or joint tenant in order to transfer the tenancy to her/him because of relationship breakdown. In the case of cohabitees, the partners must have been living together for at least six months immediately prior to the date of applying for the tenancy to be transferred.

The court must be satisfied that it is reasonable to evict, and the landlord has to offer suitable alternative accommodation to the ex-tenant. [8]

For more information, please see the section on transfer of tenancy as a repossession ground.

After the tenancy has been transferred or assigned to the joint tenant or non-entitled spouse or cohabitee, the ex-tenant will continue to have occupancy rights as long as the couple are married and s/he remains in the property. [9]

Only after the tenancy has been transferred and the ex-tenant no longer occupies the home will the property cease to be a matrimonial home. [10] When this occurs the ex-tenant will lose all of her/his occupancy rights. [11] This will only be the case if the tenancy was transferred or assigned on or after 4 May 2006. [12]

The same will apply where the couple are civil partners rather than a married couple. [13]