Assigning a lease

Askthe EA

Complicated one here, so bear with me.

I was always under the impression that while in a tenancy, tenants were entitled to replace themselves (once the LL was happy with the incoming tenant) and that lease carried on as normal with the new tenant effectively taking over the rights and protections of the outgoing tenant.

I have always considered that once there was none of the original tenants remaining that the original lease ceased to exist and that at that point, a new lease had to be created and registered with the RTB as a new tenancy. I always thought then that notice periods counted from the date the NEW tenant moved in.

I have a client that wants to sell and has received advice from their solicitor that the tenants who have moved in (on assignment) 4 months ago are entitled to the notice period of the ORIGINAL tenant. This cant be correct can it?

To my reading, this means that technically, a tenancy could roll on for 4/6 years with multiples of tenants passing through the property.

TooObvious

Directly from the RTB Website: -

"If a tenant assigns a Part 4 tenancy to a person other than a sub-tenant, the protection provided by a Part 4 tenancy ceases. The new assignee will require 6 months of continuous occupation in the dwelling before qualifying for Part 4 tenancy rights.

If a tenant assigns a dwelling to an existing sub-tenant, the Part 4 tenancy will continue to exist in favour of the new assignee for the remaining period of the original Part 4 tenancy and the assignee becomes the tenant of the Landlord. Assignment can only be done with the consent of the Landlord. Where a landlord refuses an assignment of a Tenancy, a tenant can serve a notice of termination on the landlord."

Seems pretty clear cut...

Askthe EA

Theyre not sub tenants though. A sub tenant pays rent to a tenant not the LL. So in this case im correct, i think?

Just for clarity, 2 tenants move in, Tenants A&B. Tenant A moves out and assigns to tenant C. B moves out they assign to D. At this point, no original tenants remain. I always thought at this point a new RTB registration was required and a new tenacy commenced with C&D?

davindub

Askthe EA wrote: »

Theyre not sub tenants though. A sub tenant pays rent to a tenant not the LL. So in this case im correct, i think?

Just for clarity, 2 tenants move in, Tenants A&B. Tenant A moves out and assigns to tenant C. B moves out they assign to D. At this point, no original tenants remain. I always thought at this point a new RTB registration was required and a new tenacy commenced with C&D?

Assignment is something else, what you are describing is shared tenancy (each tenant shares the tenancy rather than has their own individual).

GGTrek

Askthe EA wrote: »

Theyre not sub tenants though. A sub tenant pays rent to a tenant not the LL. So in this case im correct, i think?

Just for clarity,  2 tenants move in, Tenants A&B. Tenant A moves out and assigns to tenant C. B moves out they assign to D.  At this point, no original tenants remain. I always thought at this point a new RTB registration was required and a new tenacy commenced with C&D?

You are correct that when the last of the original tenants move out new registration fee is requested (in your case when tenant B left). However rules for registration differ (sometimes substantially) from Part 4 rules (for example when tenant A left and tenant C was assigned the lease an update of the RTB registration would be needed (but the RTB will not charge a fee in such case unless the 4 years have elapsed at the same time). The question that you have not answered is:

When did tenant A leave and tenant C got the keys of the dwelling? When did tenant B leave and tenant D got the keys of the dwelling? Only after answering these questions it is possible to provide an appropriate reply. Assignment rules are complicated (as usual with the cr..y RTA) and are regulated by Section 38 (for single tenant occupant), but in your case you have multiple occupants so that the whole of Part 4, Chapter 6 (section 48 to 53) combined together with section 38 has to be applied.

I never let old tenants that leave assign tenancy anymore (I did it once and I regretted it), it is always a very complicated and non-beneficial situation for the landlord. The remaining tenant on lease becomes the only tenant (takes over deposit and paying rent responsibility) and the other occupier chosen by the tenant (he just provides me ID of the occupier according to section 16(n): "(n) notify in writing the landlord of the identity of each person (other than a multiple tenant) who, for the time being, resides ordinarily in the dwelling." becomes a licensee of the main tenant (much simpler situation for landlord), I tell the tenant that once he leaves also the occupier has to leave and he/she has to explain it to the occupier that his/her staying depends completely on the main tenant staying.