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Tenancy Assignment Issues


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  [Tenancy Assignment Issues] - Posted: 09 December 2014 - 06:04 pm GMT
JimWB

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Hello all,

Without going into too much detail, as others have said that Peabody sometimes frequent this
site - I am looking to assign a tenancy to my granddaughter, who has lived with my wife & I for
her whole life. I should point out that I have a secure tenancy with Peabody.

Now that I have retired, my wife & I are thinking of moving outside of London.

At such time, I would like to assign my tenancy to my granddaughter so she can continue living
there. But Peabody are saying an assignment can only be made to the spouse of the tenant, as
they would automatically succeed the tenancy in the event of the tenant's death. This
contradicts heavily what is said in the Residents' Handbook:

Assignment (transferring your tenancy)
You have the right to assign (transfer) your tenancy to someone else only in the following
circumstances .
• > When a court has ordered the transfer as part of divorce or separation proceedings .
• > If you have our written permission to carry out a mutual exchange (where a tenant
swaps homes with another tenant) .
• > If you pass your tenancy on to someone who would be entitled to take it over after
your death.


If you have a secure tenancy, a qualifying member of the family is:
• > your husband, wife or civil partner;
• > your parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew
or niece; and
• > your stepchildren, stepmother, stepfather, stepbrother, stepsister, half-brother or half-
sister .
Family members other than your husband, wife or civil partner must have lived in the home, as
their only or main home, for the last 12 months .

And also what it says on Shelter:

Passing on your tenancy during your lifetime
This process is called assignment. As a secure tenant you have the right to assign your
tenancy to any person who would be eligible to take on the tenancy by succession.
(The
eligibility of which is just a family member that has lived with the tenant for longer than 12
months.)

Has anyone else gone through this process? I am reluctant to employ the skills of a solicitor
since it is very costly & I resent having to pay to do something that appears to be my right as a
secure tenant.

Thank you for reading,
Jim



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  [RE: Tenancy Assignment Issues] - Posted: 14 December 2014 - 12:23 pm GMT
tenant

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Hi Jim.

It's an odd one. When I got my first tenancy back in 1994 i was told "you can pass this on to your child".

About 10 years ago I mentioned this to a peabody manager, to be told "No you cant do that, we changed the rules"

How old is this handbook you are quoting from? Because i was EXTREMELY annoyed when I was told i could not pass my tenancy on. I had made my plans based on the fact I had been told I COULD do this. (although this has never been told to me in letter form in any 'official' way.

I am keen to discover the answer to this Jim.

I also have a friend on Peabody who moved in with her mother when her father died, and they are keen to transfer the tenancy to her (has lived there for many years) as the mother wants to leave london for her retirement & does not want to leave her daughter homeless.



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  [RE: Tenancy Assignment Issues] - Posted: 19 December 2014 - 01:41 am GMT
erewhon

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I had always assumed that you had to be dead first, before the 'inheritance ' of the tenancy can happen. The most recent version of the tenancy agreement should be checked - the one they changed to some years back. Also the actual law.



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  [RE: Tenancy Assignment Issues] - Posted: 19 December 2014 - 01:57 am GMT
erewhon

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How this works for council tenants is clearly laid out on this webpage (see the 'on death' section, then further down is the section on assignment):

http://www.medway.gov.uk/housing/councilhousing/housingmanagement/succession.aspx

Council tenants can only assign their secure tenancy to a son or daughter if they did not acquire it through succession themselves, and if there is no spouse/registered civil partner who would succeed to the tenancy if they die.

I.e. They need to dispose of the spouse at least 12 months before they can assign the tenancy to the son or daughter who lives with them.

Note the bit on whether the person getting the flat gets to stay in that particular flat - a spouse can but son, daughter, etc might have to move to a smaller flat.

Question is whether this is the same for Housing Association tenants, as there are some differences in rights between the two.



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  [RE: Tenancy Assignment Issues] - Posted: 19 December 2014 - 02:11 am GMT
erewhon

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UNLESS there have been changes, the Housing Act 1985 c.68 Part IV - Assignment, lodgers and subletting. section 91 is the relevant bit of legislation.

It says that assignment is prohibited EXCEPT in a list of specific circumstances - see point 3 - one of which is 3(c)

"an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment."

The actual wording:

91
Assignment in general prohibited.

(1)
A secure tenancy which is—

(a)
a periodic tenancy, or

(b)
a tenancy for a term certain granted on or after 5th November 1982,

is not capable of being assigned except in the cases mentioned in subsection (3).

(2)
If a secure tenancy for a term certain granted before 5th November 1982 is assigned, then, except in the cases mentioned in subsection (3), it ceases to be a secure tenancy and cannot subsequently become a secure tenancy.


(3)
The exceptions are—

(a)
an assignment in accordance with section 92 (assignment by way of exchange);


[F1(b)
an assignment in pursuance of an order made under—

(i)
section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),

(ii)
section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), F2. . .

(iii)
paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents) [F3, or

(iv)
Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.)]]

(c)
an assignment to a person who would be qualified to succeed the tenant if the tenant died immediately before the assignment.



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  [RE: Tenancy Assignment Issues] - Posted: 19 December 2014 - 02:12 am GMT
erewhon

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And somewhere else advises that it can be a tricky thing to do, unless done correctly the person being assigned the tenancy ends up not being a secure one, or something complicated. So legal advice from a housing lawyer would be sensible.



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  [RE: Tenancy Assignment Issues] - Posted: 23 December 2014 - 01:06 pm GMT
JimWB

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Hello,

Thanks for your replies.

I've been told by Peabody that an assignment to my granddaughter is not possible since my wife would automatically succeed the tenancy were I to pass away & that her right to succession cannot be bypassed under any circumstance. Apparently, there is an order to which people can succeed tenancies. First the spouse, then family members & then step-children, step-daughters, half-brothers etc.

In our case, my wife's right to succession cannot be bypassed according to Peabody.

Tenant, I would imagine your friend would be ok, since there is no longer a legal spouse who has a right to succession & the daughter could succeed the tenancy as the next of kin, particularly if it is just the two of them living in the property.

Erewhon, the housing act, as I understand it, does not state that there is an order of succession to which the tenancy assignment has to follow. As I read it, it just states that the person to whom the tenancy is to be assigned has to fit the criteria of family member living with the tenant for 12 months, of which my granddaughter more than qualifies. The only time I have been told about this unbreakable order is by Peabody, in some terms & conditions they sent me in the post. Whether or not these are legally binding, as they are contradictory to the housing act, I have no idea.

Until we can get this sorted out, we are going to stay in the flat. As per your advice we are engaging the services of a housing solicitor, who hopefully can tell us one way or the other what the law actually allows us to do.

Very disappointed in the way I have been treated. I suppose being a good tenant for over 40 years means nothing these days & they are only interested in getting their old secure tenants out as soon as they can.

I will keep you all updated as this seems to be a grey area for most tenants.

Jim



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