Applying for a Transfer of Tenancy
- What is a tenancy agreement?
- What are the different types of tenancies?
- What is sole tenancy or a joint tenancy?
- What is a transfer of tenancy?
- Why might there need to be a transfer of tenancy?
- Transfer of tenancy in private rented accommodation
- Transfer of tenancy for a local authority accommodation or accommodation from a housing association
- How can a tenancy be transferred?
- What is the process for a transfer of tenancy?
- How can I apply for a transfer of tenancy where there are no existing proceedings under the Family Law Act 1996?
- Should I seek legal advice when completing my application?
- What happens when I have completed my application?
- Transferring council house tenancy to family member
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Applying for a Transfer of Tenancy can be stressful and daunting especially where a party has never been involved in this. Not all couples are able to own their own house due to individual and financial circumstances and some married or cohabiting couples may have to rent their accommodation, which is used as the family home. This could be private rented accommodation, a hostel, a refuge or even council rented accommodation. Following a divorce or a separation couples may need to consider who will continue living in the rented accommodation and which party will move out. This is equivalent to a couple who own a property and are looking to separate with one party needing to move out whilst the other party continues living in the family home. This is where transfer of tenancy would come into place.
What is a tenancy agreement?
The Citizens Advice has correctly defined the tenancy agreement as a contract agreement between individuals and the landlord. The agreement contains certain rights which are attributed to both the tenant and the landlord. The main rights afforded are for the tenant to occupy the property as their accommodation and the landlord has the right to receive rent for providing the accommodation. This sort of tenancy agreement usually applies to accommodation which is either privately rented or rented through the council, however there are different types of tenancies. Shared accommodation such as a hostel or a refuge will not be subject to a tenancy agreement but will be regulated by a licence agreement.
What are the different types of tenancies?
The government websites describe the different types of tenancies as, ‘A tenancy can be an assured short hold tenancy, excluded tenancy, assured tenancy or a regulated tenancy’.
As assured short hold tenancy is the most common tenancy. This is where the property rented is a private property, your landlord doesn’t reside in this property, this property is your main home and your tenancy commenced on or after 15th January 1989. However, if your tenancy began before 15th January 1989, or your rent is more than £100,000.00 a year or less than £250 a year, or if the tenancy is a business tenancy or holiday let, or the property belongs to a local council or a housing association then this will not be classed as an assured short hold tenancy.
If you are renting accommodation from the council (local authority), a housing association or a registered social landlord then this type of tenancy is usually an assured tenancy.
Where your landlord resides in the same accommodation, and you share a kitchen or a bathroom with them this is usually an excluded tenancy.
What is sole tenancy or a joint tenancy?
As with sole housing ownership a sole tenancy means that the property is only rented out to one individual. Despite other occupants and family members living in this accommodation a sole tenancy means there is one legal tenant. The other occupants are non as the non-tenant cohabitants.
A joint tenancy is where there are 2 or more tenants who have signed a single tenancy agreement. This is often the case where a married couple or a cohabiting couple jointly enter into a tenancy agreement, and both have signed the agreement. Both individuals will have equal rights and responsibilities. This also means both must follow the agreements made under the tenancy agreement.
What is a transfer of tenancy?
A transfer of tenancy is a process whereby tenancy is either transferred from joint names to a sole name or transferred from one party to another where there is only a sole tenancy. In cases of joint tenancies, this means there will no longer be joint names which means the person who is no longer on the tenancy agreement will not be responsible for any rent or payment towards the accommodation. In cases of a sole tenancy, where a transfer of tenancy occurs, the person who is no longer named on the tenancy will no longer be responsible to anything to do with the accommodation or any liabilities associated with this
Why might there need to be a transfer of tenancy?
Not all relationships are permanent, unfortunately some relationship end which then leads to a divorce or a separation. When a couple part ways the living arrangements will need to be considered this is especially the case where the couple had entered into a joint tenancy. In this situation parties will need to decide who will move out and who continues living in the property.
Following a divorce or separation where one member of the parties moving on there may need to be a transfer of tenancy, where one person will solely be responsible for the accommodation whilst the other party will move out and not be a part of the tenancy agreement in place.
Transfer of tenancy in private rented accommodation
In cases of an assured short hold tenancy between private individuals the transfer of a tenancy could be a simple process, especially where the landlord agrees. If you are looking to transfer the tenancy, then you should notify your landlord. Where this can be agreed the change would usually be noted by drawing out a new tenancy agreement with one party being the sole tenant, or by way of the existing tenancy being amended to reflect the same. There may be a charge for transferring the tenancy especially where there is a change which has been requested by the tenant as opposed to the landlord.
If, however, your landlord does not change your tenancy agreement to reflect the transfer of tenancy, or you have been unable to reach an agreement as to who will remain living in the property then you will need to apply to the court for order. The application will be for a transfer of tenancy order. Such applications to the court are very rare given the length of the assured short hold tenancy which are normally for a short period of time.
Transfer of tenancy for a local authority accommodation or accommodation from a housing association
Complications usually arise where a couple live in rented accommodation from the council, local authority, or a housing association. The reason for this is that you may need to be rehoused by the council or housing association and therefore you may need to seek legal advice. This will be important for the outgoing party to ensure they have been removed promptly so they are able to get housed form the council or obtain other social housing to ensure they do not remain without any accommodation and do not become homeless.
Where there needs to be a transfer of tenancy which relates to council, housing association of social landlord then there may be a need for a court order. Social landlords can usually request for an order before the transfer of a tenancy even where both parties agree.
How can a tenancy be transferred?
Where a tenancy needs to be amended from joint names to a sole name, or where there needs to be a transfer of tenancy from one party to another you will need to apply to the family court. The court will consider the status of your relationship together with whether there are dependants and whether you or the children have been subject to any domestic abuse.
You will be able to apply for a transfer of tenancy if you are married and are looking to get divorced, you were living together as cohabitants and whether you have any children who will be living with you in the property.
What is the process for a transfer of tenancy?
If you have suffered domestic abuse form your partner and are making an application for a non-molestation order then you may be able to have the transfer of proceedings considered within your existing proceedings under the Family Law Act 1996. You may consider seeking for an occupation order of the family home. This will also allow the court to also order a transfer of tenancy from one partner to the other. You could also seek a transfer of tenancy during divorce proceedings. In which case as well as a divorce and financial settlement the courts may also consider the issue surrounding the tenancy.
How can I apply for a transfer of tenancy where there are no existing proceedings under the Family Law Act 1996?
Where no family law act proceedings are ongoing you can apply for a transfer of tenancy order through an application under section 17 of The Married women’s property Act 1882 or under section 66 of the Civil Partnership Act 2004 or alternatively under the Family Law Act 1996. This is done by completing an submitting the Form D50B. You must also ensure you prepare a statement which supports and accompanies your application. The statement must clearly state the type of your tenancy you hold. This should confirm whether the tenancy is an assured tenancy, an assured short hold tenancy, a regulated tenancy, or a licence.
The statement supporting your application must also confirm whether the tenancy is a sole or joint tenancy. If joint tenancy whether this was joint from the start, if not, how the other party became joint tenants. Your statement must also detail how you lived in the property, whether this was by virtue of being married, entering a civil partnership or whether you were just cohabiting. You must also ensure to include relevant information on your housing needs, housing resources and the effect the making of or not making of an order for transfer of tenancy will have on you, the other party, and any children if any. You will therefore need to cover off how the property is suitable to meet your needs, i.e. whether this is close by to your place of work and or your children’s place of education. You will also need to show whether you have access to any other property or whether you are able to rent any other properties or are able to live elsewhere.
Where you and your partner were living as cohabitees then as well as the above you must also show how long you have lived together, the nature of your relationship, when you stopped living together.
Once you have completed your application form and prepared your supporting statement you will need to submit the application to the court and make the relevant fee of £245.00. This fee will need to be paid unless you are entitled to receive help with court fees.
Should I seek legal advice when completing my application?
You may be going through an acrimonious divorce and separation and may not be in a position to give careful attention to your application. You should therefore consult legal advice if possible. You will first need to consider whether you are able to make such an application. You will then need to ensure your application and specifically your statement covers the key elements mentioned above. This is very important to ensure you achieve the outcome you desire as there are key issues which the courts will consider in detail when considering your application for a transfer of tenancy. At Kabir Family Law, our family law specialists have vast amount of knowledge in dealing with such matters and can assist you in your completing your application and you preparing your statement. Contact us today to discuss your personal matter and to arrange a free consultation.
What happens when I have completed my application?
Once you have completed and submitted your application together with the court fee, the courts will contact you once your application has been issued. This will usually be a notice of hearing and may accompany a notice of hearing which will confirm the date your application will be heard, the time of the hearing as well as whether the hearing is remote or an in-person hearing requiring your attendance.
A copy of your application of transfer of proceedings will also be sent to the other party as well as the landlord. The other party will be referred to as a respondent and will be required to return an acknowledgement of service. If they wish to oppose your application, they must also provide a statement responding to your application when filing the acknowledgement of service.
At Kabir Family Law we can also help you prepare for your hearing whether you are the applicant or the respondent. Where you have been served with an application for a transfer of tenancy and you oppose this, we can also assist you in preparing your response statement.
Transferring council house tenancy to family member
There may often be a need for tenancies to be passed from one tenant to another person. This may need to be done whilst the tenant is still alive, or where the tenant is no longer surviving and somebody else would need to continue with the tenancy.
A tenant who is still alive may be able to pass their tenancy to someone else. This is known as a tenancy assignment. This is usually done where you want to transfer your tenancy to a partner or a family member who resides in the property with you or alternatively if you are swapping homes with another council or housing association tenant.
When an assignment takes place your legal interest in the property Is passed to the assignee who becomes a tenant. This right to assignment is provided under Section 1(1) of the Law of Property Act 1925. An assignment may only be possible where the landlord agrees and if the tenancy agreement permits this. If an assignment is permitted by the agreement, then this process can be handled by way of a deed of transfer. It is important to note that a tenancy may only be assigned to a partner or a family member, this cannot be assigned to friends. Furthermore, the person wishing to take over the tenancy must have also lived in the property for a certain period which will be defined by the local authority or the housing association in question.
On the other hand, where the tenant is no longer surviving then a partner or a family member may be able to take over the tenancy, this will be referred to as succession. This usually applies where the person taking over the tenancy has lived in the property. If the landlord considers there is no one entitled to the succession, then they may serve a notice and commence the matter for an eviction.
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Why should I apply for a transfer of tenancy on Council Housing?
One question our family law specialists are often asked is why should I apply for a transfer of tenancy on council housing. This is an important question which requires some consideration. The reason for this is because of the introduction of Right to Buy. Right to buy is a scheme introduced in 1980 which provides tenants the right to buy their home at a discounted price. The maximum discount available is £96,010. You will be eligible for this discount if you have been a tenant for at least 3 years (this does not have to be continuous) and you have not had any legal issues with debt or bankruptcy or any possession orders.
You may have been a tenant in joint names with your partner form whom you have separated from. Therefore, unless you have applied for a transfer of tenancy on council housing in this situation you may lose your entitled for the right to buy and the opportunity to buy your house at a discounted rate.
Where you are not a tenant however have been living with the tenant in the home as a family unit you will need to ensure you apply for a transfer of tenancy to get the tenancy in your name where your partner leaves. Without this again you will not be able to take benefit of your right to buy.
If you are wanting to find out how your tenancy can affect your housing and right to buy, then contact us today to discuss your options through a free initial consultation.
Can a transfer of a tenancy take place for the benefit of the children?
A transfer of tenancy can take place where there are children under the age of 18. One parent may be able to make an application under Section 15 of the Children Act 1989. Schedule 1 of the Childrens Act 1989 also provides transfer of tenancy to the parent who the children will reside with for the benefit of the children. The Act provides for an order requiring either or both parents of a child to transfer to the applicant, for the benefit of the child or to transfer to the child themselves such property to which the parent is entitled to.
Contact Kabir Family Law today for a free initial consultation
If you are considering the transfer of a tenancy then contact us today for advice. Our family lawyers in Fulham as well as across Coventry, London, Nottingham, Newcastle, Northampton, Oxford and London can assist you to ensure you fully understand the procedure for transfer of a tenancy and assist you with your application.
We provide family law advice nationally as well as internationally through telephone, email and Skype. We will also ensure you are kept up to date with your matter and assist you developing a strategy to help you succeed. Contact us today for a free initial consultation by calling on 029 2192 1400 to discuss your options or let us call you back.