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					               Tenant’s Rights –
An Introduction to Succession, Assignment and
               Mutual Exchange



                  Neil Lawlor
             Partner - Devonshires
                    Assignment

• Can only be done by Deed as transfer of Land, i.e.
   – In writing
   – State on its face it is a Deed
   – Executed as a Deed
          Assignment – Secure Tenant


• Only possible when to a person entitled to succeed.
        Assignment - Assured Tenants


• s15 Housing Act 1988 imports implied term into all
  assured periodic tenants that except with consent a
  tenant cannot:
   – Assign the tenancy (in whole or in part)

• Consent can be refused for any reason (but check
  terms under Tenancy Agreement)
               Assignment - General

• If assignment made without a landlord’s consent then
  the landlord could seek possession on breach of that
  express term.
• Where you have release by one joint tenant in their
  interest in the joint tenancy, this could be construed as
  assignment.
                 Mutual Exchange


• Secure tenants need written consent.
• Assured tenants do not need written consent unless
  subject to a contractual term within tenancy
  agreement.
              Mutual Exchange
     Secure Tenants – Refusal of Consent

• Refusal only on Grounds specified under Schedule 3
  Housing Act 1985
• Written notice of refusal with reasons must be given
  within 42 days of tenant’s application.
             Mutual Exchange
    Grounds for Refusal – Secure Tenants

• See Schedule 3 Housing Act 1985
   – Existing Possession Order or Proceedings Started
     on Grounds 1-6 of Schedule 2
   – Size of Property (under-occupation by incoming
     tenant/unsuitable)
   – Non-residential or former employee
   – Landlord is a charity and incoming tenant’s
     occupation would conflict with aims of charity
             Mutual Exchange
Grounds for Refusal – Secure Tenants (cont’d)

• Property adapted for use by those with disabilities.
• Incoming tenant does not fit criteria for tenants of that
  particular scheme.
• Property is subject to a management agreement which
  tenants have to sign up to and incoming tenant is not
  or not willing to sign up to that agreement.
                 Mutual Exchange

• Consent given must be unconditional, unless there is a
  breach of obligations such as rent arrears.

• Can only be completed by Deed of Assignment.
                    Succession

• No automatic termination of tenancy on death.
• Joint tenancy vests in surviving tenant.
• Sole tenancy – need to check if anyone qualifies for
  succession.
• Children under 18 can succeed.
• Succession takes place automatically, do not grant
  new tenancy agreement without seeking legal advice.
         Succession – Secure Tenants

• Any potential successor must occupy the property at the
  time of death and be either:
   – The deceased tenant’s spouse
   – Be another family member – i.e. parent, grandparent,
     child, sibling, aunt or uncle or a nephew or niece,
     step-relatives and illegitimate children.
• Family members must reside with the tenant for 12
  months prior to the date of death.
          Succession – Secure Tenants

• Where more than one relative is entitled to succeed, if
  tenant married – then spouse will succeed.
• If tenant not married, family members will have to
  agree between them who to succeed.
• If no agreement reached – landlord must decide.
         Succession – Secure Tenants

• Succession can happen only once in a tenancy –
  check history to see no previous succession.
• Where no one is qualified to succeed, then tenancy
  loses its secure status.
          Succession – Secure Tenants

• If there is someone qualified to succeed, then
  succession happens automatically.
• Successor gets tenancy with all the rights and
  obligations contained within it.
         Succession – Secure Tenants

• Fixed Term Tenancy – where term has not expired, it
  will continue to have secure status until either:
   – Confirmed that tenancy won’t be disposed of in
      family proceedings;
   – Tenancy actually disposed of as part of the
      administration of the deceased tenant’s estate.
• Once either of the above happens, the tenancy
  ceased to be secure.
         Succession – Secure Tenants

• If valid succession, then may still be possible to
  recover possession on other Grounds.
   – Only or principal home
   – Ground 16 (Note – NOSP must be served no
      earlier than 6 months and no later than 12 months
      from date of death of previous tenant).
        Succession – Assured Tenants

• Potential successor must have occupied as only or
  main home immediately before tenant died.
• Successor must be a spouse.
• Check tenancy terms – may be provision for family
  members to succeed at discretion of landlord.
         Succession – Assured Tenants

• No right to succeed if succession has already taken
  place.
• If someone qualified to succeed, it happens
  automatically.
         Succession – Assured Tenants

• If no-one qualified to succeed:
   – Check if there’s a will – if provides for someone to
      inherit tenancy, then only one year from death of
      former tenant to serve NOSP on Ground 7.
   – If not, then loses status and can be ended by
      Notice to Quit (copy needs to be served on Public
      Trustees).
                  Non-Occupation

• Parting with possession of the whole of the property
• Serve NTQ – tenancy terminates upon expiry.
        Subletting of Whole of Premises

• Subletting whole of Premises – tenants lose security of
  tenure.
• Serve NTQ and without prejudice NOSP on breach of
  tenancy by subletting.
• Issue proceedings on NTQ and alternative breach by
  subletting and non-occupation
                       Lodgers

• Secure tenants have absolute right to take in lodgers.
• Lodger vs. sub-tenant.
• Consent needed by tenant to sublet but landlord
  cannot refuse unreasonably and reasons must be
  provided.

				
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posted:11/5/2012
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