Assignation and assured tenancies

It is an implied term of every assured tenancy that the tenant cannot assign the tenancy unless the landlord gives consent. [1] This only applies if there is no clause in the lease dealing with assignation. If there is a clause dealing with assignation, then the contents of the clause take precedence over the implied term. [2]

If there is a clause in the lease dealing with assignation then it should be checked to see if a particular procedure is to be followed. If the lease does not lay down a procedure or is silent, then clearly the landlord will have to give active consent. [3] This means more than simply accepting rent; the landlord must somehow indicate that s/he knows that the person paying the rent has changed or this must be clearly brought to her/his attention.

No particular form is required, but the intention to assign must be clear, and like the lease itself, the deed should be in writing. [4] If the lease is for a year or less the assignation could be oral, but good practice dictates that a deed should be drawn up.

Where the landlord's consent is needed, it is a good idea to have her/him sign the deed as well. Where the lease states that the landlord's consent is not needed, the assignation must be intimated to the landlord by the assignor for it to be effective. The landlord can acknowledge intimation either implicitly, for example, by accepting rent from the assignee, or explicitly.

Unlike Scottish secure tenancies, there is no statutory provision that the landlord's refusal of consent shall be reasonable. If the tenant wants to assign the tenancy and the landlord refuses permission, then that is an end to the matter.

The prohibitions on assigning assured tenancies also apply to short assured tenancies.