4.1 Before a tenant can assign their home to someone else they must apply in writing to their landlord for written permission to do so and get their landlord's written consent.
4.2 Section 12(2) of the 2014 Act makes the following changes to the Housing (Scotland) Act 2001:
- the house must have been the tenant's only or principal home during the 12 months immediately before the tenant applies for written permission to pass their tenancy to someone else (previously there was no qualifying period); and
- the person the tenant wishes to pass their tenancy to must have lived at the property as their only or principal home for the 12 months before they apply (previously the qualifying period was 6 months); and
- the tenant, joint tenant or person they wish to assign their tenancy to must have notified the landlord that the person they wish to assign the tenancy to is living in the house. The 12 month period does not start unless the landlord has been notified that the person is living in the property as their only or principal home.
Assignation - Transitional Provisions
4.3 A notification given before 1 November 2019 by an individual living in the house in question as their only or principal home, or by any other person who was the tenant of the house in question when the notice was given, is to be treated by the landlord as notification of the start of the new 12 month residency requirement introduced in section 32(1)(b) of the 2001 Act. An example of this is below.
4.4 A tenant notified his landlord that his cousin moved into the property as his only or principal home on 1 February 2019. The tenant, who had lived in the property for a number of years, then made a written application to pass the tenancy to his cousin on 1 February 2020. The 12 month residency requirement would be satisfied at the expiry of the 12 month period following notification, i.e. 31 January 2020. The landlord will however also wish to consider whether it is appropriate to allow the assignation (see paragraphs 4.6 to 4.7 below).
Assignation - Notification and Applications
4.5 Landlords should set out clearly in their tenancy information, such as tenants' handbooks, which methods of notification they will accept and who the notification should be made to. For example this could include notification by email or letter or by the tenant updating their household information on web-based tenancy management sites. Where a child in the household reaches the age of 16, landlords will want to take a practical approach to the notification of this information. For example, if they were part of the household when the house was allocated and/or it is their long-term and principal home, the landlord will know who is living in the property and that should be considered as notification.
4.6 A landlord can refuse permission to assign a tenancy if it is reasonable for them to do so. Two new reasons a landlord can refuse an application for assignation have been added to the existing list of reasons at section 32 of the Housing (Scotland) Act 2001. These new reasons which landlords can use from 1 November 2019 are:
- where the landlord (being a local authority or a registered social landlord) would not give the person the tenant wishes to pass the tenancy to reasonable preference under their allocations policy; and
- where, in the landlord's opinion, the assignation would result in the home being under occupied.
4.7 Where landlords are notified that someone has moved into the property, in line with current practice, they will wish to consider whether it is appropriate for that person to live in the house. For example if this results in overcrowding they may refuse permission for the person to remain in the property. The notification will also give landlords an opportunity to identify any other issues arising from the person's residency in the house, such as support needs.
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