• What is assignation?
• Who has the right to assign their tenancy?
• What is the process for assigning a tenancy?
• Refusing a request to assign a tenancy
• Does a tenant have a right of appeal?
• What rights does the assignee have if the tenancy is assigned?

What is assignation?

Assignation is where a tenant passes on (assigns) their tenancy and tenancy rights to another person (known as the assignee).

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Who has the right to assign their tenancy?

A Scottish secure tenant has the right to assign their tenancy, as long as the assignee has lived in the house for six months as her/his only or principal home, and   provided that the tenant gets our written permission. We cannot withhold our permission unreasonably. If we fail to respond to a request to assign within one month of the receipt of the application, the application is deemed to have been granted.

See the  Housing (Scotland) Act 2001.

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What is the process for assigning a tenancy?

A Scottish secure tenant who wants to assign their tenancy must  contact us and fill in the standard application form, which includes 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.

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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.

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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 the landlord to consent to the application unless it considers that the refusal is reasonable

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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 the landlord 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.

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