RULES FOR ASSIGNING AND SUBLETTING

Can you assign or sublet? The answer to this is that if your agreement does not say you must not, you are perfectly entitled to do so. If the landlord refuses consent unreasonably, the tenant can sub-let without risking his tenancy.

Although there would be no legal requirement in such a case that the subtenant should have good references and be able to pay the rent, for his own peace of mind the tenant should satisfy himself on these two matters before granting the sub-tenancy. If the landlord has a mortgage sub-tenants of a landlord will not be evicted if their immediate landlord is ordered to give up the property, they would, however, face eviction if their landlord has sub-let without authority.

Landlords, however, do not like allowing their tenants to assign or sublet as they please, if you transfer the tenancy to anyone, how will he know that the person will be a desirable tenant?

Therefore, a landlord usually says in the tenancy agreement that the tenant shall not assign or sublet the premises.

However, some tenancy agreements may forbid sub-letting ' without the consent of the landlords '. In such cases, the landlord cannot refuse permission unreasonably, to responsible people

Many leases nowadays state that the landlord's consent shall not be " unreasonably withheld," and I would advise you to try to insist on such wording. Clauses of this kind must be carefully worded. If you are forbidden only to assign, you may usually nevertheless sublet, and if the clause merely says that you shall not assign or sublet " the premises " you may still assign or sublet part of them. This is sometimes important, for you may wish to take in lodgers. Unless your agreement says that you must not assign or sublet the premises or any part there you will be entitled to take in lodgers even though your lodgers are really under-tenants, i.e., have an exclusive right to some room in the house.

Further, if the lodgers are entitled to sleep in some room in the house, but not in any particular room, and cannot complain if their room is changed from time to time, they are only boarders and not sub-tenants and you may take them in, even though your agreement contains a clause of this kind. In the same way you are not forbidden by any clause relating to assigning or subletting to allow a friend of yours to live in your house or part of it, so long as you are entitled, if you wish to do so, to put him out at any time.

An assignment takes place when you transfer your tenancy to some other person for the whole of the time it has to run. A subletting or sub-tenancy takes place when you yourself act as landlord and grant a tenancy to some person for some time less than the whole time your own tenancy has yet to run.

Remember that you cannot assign a lease for any period other than the whole period it still has to run. If a tenants lease has five years to run it can be assigned for those five years, a sub-tenancy will be for a shorter period than the full term . An assignee is liable just in the same way as the original tenant was and he pays his rent to that tenant's landlord just as the tenant did. A sub-tenant pays his rent to his landlord, that is, the original tenant. Further, the amount of the rent paid by the sub-tenant may be quite different from that paid by the tenant.

Enforceability of covenants
The original landlord and tenant are contractually liable on the covenants in the lease. Where the tenant assigns his lease (or himself takes a sub-tenant) or the landlord assigns his reversion, the binding effect of the covenants will depend on the law relating to restrictive covenants.

PAYING GUESTS

Turning a house into fiats, whether or not any service is also given; Taking in paying guests, even though only friends and recommended persons are accepted; Putting up a shed in the garden which is used as a classroom for children. You will see, by the way, that while you can take in paying guests even though you are forbidden to sublet, you cannot do so if you are required by your agreement to use the house as a private dwelling house only. If your agreement says that you must not carry on any trade or business, that is much the same thing as requiring you to use your house as a private dwelling house only.

Sometimes however you find only the word "trade" or only the word "business" in your agreement. There is quite an important distinction between these two words. You can only carry on a trade if you are buying and selling something, which means that many occupations which are businesses are not trades. "Business" is a much wider word, including all cases in which some work is done at the premises which results in a large number of people calling there.

It is now possible for a tenant who is prevented by the terms of his agreement from letting his house in flats, either because he is forbidden to sublet or forbidden to carry on a business, to apply to the County Court for permission to ignore these clauses in his agreement. He must, however, show that the house cannot be easily let as a single dwelling house; that it could be more easily let if it is converted into Flats; and that the difficulty in letting as a single house is due to changes in the character of the

LIABILITY OF ASSIGNOR

There is one point very often misunderstood in connection with assigning. Do not imagine that when you have ceased to occupy the house because you have assigned or sublet it, you are no longer liable for the rent. It is true that the assignee should pay it to the landlord in the first place, but if he does not the landlord can make you pay, and although you can then try to get it back from the assignee you may not be able to do so, for he may go bankrupt or simply disappear. In the same way of course you must pay your rent to the landlord when you have sublet, whether or not your sub-tenant pays his rent to you.
"Private Dwelling House"

A lease will invariably contain restrictions whereby the landlord's consent is required prior to your parting with all or part of your interest as tenant. This restriction will normally cover assignment of the lease, sub-letting or any other forms of parting with or sharing possession.

There may be an absolute prohibition on such transactions (as a tenant you should strenuously resist this unless the lease is short term) or the landlord must give his prior consent. In the latter case, you should seek to ensure that consent should not be unreasonably withheld (if nothing is said in the lease, the law assumes this).

Whether you can claim that a landlord has acted unreasonably will depend on provisions in the lease and the relevance of the objection to the landlord's legitimate interests.

If you apply to assign the lease and the landlord must give prior consent without unreasonably withholding it, a written response must be given by the landlord within a reasonable time (subject to his right to see further information about the assignee).
It is vital to note that even if the landlord gives his consent to an assignment, you may have continuing liabilities for the duration of the original lease and to consider whether you should be seeking an indemnity from your assignee, having first assessed his solvency and business prospects.

If you wish to sublet, you should check in the lease the extent of your rights to do so. Your landlord will generally want your sub-tenant to agree directly with the landlord that he will observe the terms of the lease.

The landlord may try to exclude your right to compensation but this clause will not be effective if you have been in occupation more than 5 years prior to quitting possession. You may also be entitled to compensation for improvements you have carried out at the premises with the landlord's consent.

RIGHTS OF USE WHEN OCCUPYING PART OF A BUILDING

If you are intending to occupy part of a building or you are subletting part of your own premises to another business, rights of use and access require special attention.

Each parcel within the overall site should be clearly defined to include the precise location of, and responsibility for, vertical and horizontal boundaries, cables, pipes, wire, drains, sewers and other conduits. Your surveyor should assist you in this area.
In addition, you will need to ensure that the premises benefit from the necessary rights over common parts and other tenants' premises. These rights are likely to include access, parking spaces, mains services, toilets, fire escapes, the right to put up name plates and the like. Conversely, the landlord will reserve certain rights, e.g. access to the premises for inspection.