Assigning your lease is a way to dispose of your legal interest in the lease by transferring it to a third party. The incoming tenant will take on the outgoing tenants’ obligations under the lease. If you would like to assign your lease, you will need to consider the following:
- Does your lease permit assignments?
Check the alienation clause in your lease. Generally, a lease will permit assignments of the whole of the property with the landlord’s consent which is not to be unreasonably withheld or delayed.
- Finding an assignee
You will be responsible for finding the new tenant to assign the lease to and negotiating the terms of the assignment, for example, rent deposit or any premium payable. You may wish to use an agent to market the property.
- Applying for consent
If the landlord’s consent is required, you will need to apply to the landlord for consent to the assignment and the lease will likely require you to pay the landlord’s costs in connection with this. If the landlord does provide their consent, it will usually be in a formal Licence to Assign document and we can assist with the negotiation of this.
- Can the landlord impose conditions on the assignment?
The lease will likely also set out conditions that the landlord can impose when granting consent to the assignment. These may be requirements for the new tenant to satisfy, such as providing a rent deposit or a guarantor.
It is also common for the landlord to require an authorised guarantee agreement (AGA) from you when assigning your lease. This is a guarantee from you of the new tenant’s performance of the tenant obligations under the lease. This means that you will still be responsible even after assigning the lease. For example, if the new tenant fails to pay the rent under the lease, the landlord can pursue you for the outstanding sum. However, any AGA you give will fall away if the new tenant you assigned the lease to assigns the lease again, and there may be some circumstances when it is unreasonable for the landlord to require an AGA from you (i.e. the new tenant has a superior covenant strength).
- Can the landlord withhold consent to the assignment?
The lease will likely set out circumstances when it will be considered reasonable for the landlord to withhold its consent to the assignment. These commonly include:
- Sums due under the lease are outstanding. The landlord will likely require all outstanding payments to be made before they give their consent to the assignment; or
- The new tenant not being of sufficient financial covenant strength. The wording of the lease may vary but the landlord may require evidence of the new tenant’s financial covenant strength (i.e. copies of company accounts).
The landlord may also be able to withhold consent in other circumstances provided it is acting reasonably.
- Other practical considerations
- If you provided a rent deposit to your landlord, this will likely be repayable on the assignment of the lease. You should request confirmation of the amount that is held and how and when this will be returned to you.
- You will likely need to give notice of the assignment to the landlord.
- The new incoming tenant will usually deal with registering the assignment with HM Land Registry if applicable, but you should request a copy of the title as evidence that this has been completed.
If you need advice on assigning a lease, need assistance in serving a notice of assignment or require a solicitor to draft your deed of assignment please contact our specialist team here at Onyx Solicitors, on 0121 268 3208 or email us at info@onyxsolicitors.com with your query.
