Assignation, Subletting and Taking in a Lodger
What is Assignation?
Assignation is where a tenant passes on (assigns) their tenancy & tenancy rights to another person (known as the assignee)
A tenant of Easthall Park has the legal right to assign their tenancy to another person, as long as the consent is first sought from the Co-operative. Generally, the only people who you can pass the tenancy to are:
- Your spouse;
- Your long term partner (including same sex partner);
- Your son or daughter (including adopted children;)
- A close member of your family
Except for a spouse, the person taking on the tenancy must have been living within the tenancy for 6 months prior to the transfer of the tenancy.
What is the process for assigning a tenancy?
- A Scottish secure tenant who wants to assign their tenancy must contact us and tell us the following information:
- the details of the tenant who wishes to assign her/his tenancy;
- the address of the property;
- the name of the assignee, who is the prospective tenant; and the date of the proposed assignation.
- If the tenant is to receive any payment for assigning the tenancy, details of the payment should also be given.
- If the tenant is a joint tenant, they must get the written permission of any other joint tenants.
- If the tenant is married, or has a civil partner, they must get the written permission of their spouse or civil partner.
Refusing a request to assign a tenancy
If we refuse to give consent then we must write to the tenant within one month from receipt of their request and detail the reasons for that refusal.
Reasonable grounds include:
- a notice of proceedings for possession has been served on the tenant which specifies any of the 'conduct' grounds for eviction.
- an order for recovery of possession has been made against the tenant
- it appears to us that the tenant is to receive a payment for the assignation which is other than reasonable rent or a reasonable and returnable security deposit (for gas, electricity, telephone or other domestic supplies or damage to the property or contents)
- the assignation would lead to overcrowding
- we propose to carry out work on the house or building which would affect the accommodation in question.
- Other grounds for refusal are possible. The above are those given in the Housing (Scotland) Act 2001
- In addition, case law has demonstrated that the sheriff is not restricted to these matters alone. Other factors that may be considered include: whether or not the transaction is for financial gain, or to get round allocation rules;
the creditworthiness of the new tenant.
- If significant under-occupation would occur.
Does a tenant have a right of appeal?
A tenant has the right to appeal to the sheriff court if we refuse consent. The tenant would have to convince the sheriff that the reasons given by the landlord for refusal were unreasonable. The court must order us to consent to the application unless it considers that the refusal is reasonable.
What rights does the assignee have if the tenancy is assigned?
After a tenancy has been assigned the new tenant (the assignee) has the same legal rights and obligations as the old tenant (the assignor) except that the old tenant's period of tenancy will not count towards the assignee's discount under the right to buy (should it apply).
When a tenant assigns, her/his legal interest in the property is passed on to the assignee. The assignee takes over that interest and becomes the tenant her/himself from an agreed date to the termination of the lease. The assignee then possesses the property on the same terms as the assignor. The assignor’s relationship with us ends at the date of assignation.
The assignee is not only liable for rent from the date of assignation, but also for the any arrears due by the assignor. Any arrears accruing after assignation are the responsibility of the new tenant. The former tenant is not liable for them and we cannot seek payment from her/him.
What is subletting?
Subletting is where you move out and rent out your home to another person or family.
A tenant requires written permission from Easthall Park before a sublet can proceed.
A granting of a sublet may be considered in the following circumstances:
- Where a tenant is taking up a contract of employment for a fixed period of time and this is outwith travelling distance from home;
- Where a tenant is taking an extended holiday;
- Where a tenant is moving away to study for a period of time;
- Where a tenant is going away for a limited period of time to look after a sick or elderly relative.
During the period of sub let the tenant remains responsible for the conduct of the tenancy.
If you wish to consider subletting your property, please contact the office.
What about lodgers?
Taking in a lodger is where you rent out a room in your home to someone else but you keep living in the property. We recognise many tenants may consider this due to the introduction in April 2013 of the Housing Benefit under occupation charge.
The key information to note is the tenant must obtain our written consent before renting a room to a lodger. We will not refuse unreasonably.