Assignation and protected tenancies

Protected tenants can only assign their tenancies with the landlord's consent. If they assign without consent, this would be a ground for eviction. [1] A regulated (statutory) tenant is entitled to assign her/his tenancy as long as s/he gets the landlord's consent. [2]

No particular form is required, but the intention to assign must be clear and like the lease itself, the deed should be in writing. [3] 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. As the landlord's consent will be needed it is a good idea to have her/him sign the deed as well.

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

An important point to note in the assignation of protected tenancies relates to the paying of premiums.

Anyone who makes the payment of a premium or the making of a loan a condition of the assignation shall be guilty of a criminal offence. [4] This also applies to anyone receiving such a payment or loan. [5]

Notwithstanding this an assignor of a protected tenancy can ask for/receive a payment from the assignee in some circumstances. These include:

• reimbursement of any outgoings which have been paid by the assignor, but which relate to the period following assignation

• any money reasonably incurred by the assignor in carrying out structural alterations or improving fixtures that are part of the property

• where an assignor became a tenant from the assignation of a protected tenancy and they paid their assignor for improvements (similar to those outlined above) they, or any previous assignor, had made

• where a part of the house is used for a business which is also being assigned, a payment for the 'goodwill' of the business. [6]

There is a power to charge a premium on the assignation of a protected tenancy where a premium was lawfully charged on an earlier assignation. [7] But as this exception relates to original assignations/premiums in effect before 2 June 1949 with the subsequent assignation being after 29 August 1954, it will have limited impact.