Assignment vs subletting — the legal distinction and why it matters
Assignment and subletting are frequently confused but have distinct legal consequences for the landlord's rights and for who is liable for rent.
- Assignment — transfer of the whole tenancy: the original tenant (assignor) transfers their entire tenancy interest to a new person (assignee). The assignee becomes the landlord's direct tenant; the original tenant steps out entirely (subject to any release)
- Subletting — new tenancy beneath the existing one: the original tenant (mesne landlord) grants a new tenancy to the subtenant. The original tenant remains in contractual relationship with the landlord and is still liable for rent and property condition. The landlord has no direct relationship with the subtenant
- Identifying which has occurred: where a tenant has put someone else in the property, establish whether the original tenant has left (assignment) or remains (subletting). Both typically require the landlord's consent under a standard AST
- Legal consequence for the landlord: in an assignment, the landlord's counterparty changes to the assignee — new referencing and right-to-rent checks are required. In a subletting, the landlord's counterparty remains the original tenant but there is an additional occupancy layer beneath
Landlord's right to refuse assignment — no reasonableness obligation for ASTs
The landlord's ability to refuse consent to assign depends on the tenancy agreement. For residential ASTs, there is no statutory reasonableness obligation — unlike commercial leases under LTA 1927.
- Absolute prohibition: a clause absolutely prohibiting assignment means the landlord can refuse consent for any reason. No reasonableness test applies
- Qualified prohibition (consent required): a clause requiring written consent before assignment — the landlord can still refuse for any reason for a residential AST. The LTA 1927 s.19 reasonableness requirement does not apply to ASTs
- Express reasonableness condition: where the tenancy agreement specifically states consent shall not be unreasonably withheld, the landlord is bound by that contractual obligation. Uncommon in standard ASTs
- RRA 2025 — no change: the Renters' Rights Act 2025 does not alter the general law on assignment. Tenants under periodic tenancies created from 1 May 2026 still require landlord consent to assign as specified in the tenancy agreement
The assignment process — deed, right to rent, and original tenant liability
Where the landlord agrees to an assignment, the process should be documented carefully. Key steps: the deed of assignment, right-to-rent checks on the incoming assignee, and whether the original tenant is released from future liability.
- Deed of assignment: signed by the assignor, assignee, and landlord (to record consent). Records: date of assignment, parties, property, terms of the tenancy being assigned, and terms of any release. Use a solicitor for anything other than straightforward assignments
- Right-to-rent checks on the assignee: the incoming assignee is a new occupier and must pass right-to-rent checks before occupation. Failure to check the assignee attracts the same civil penalty as a failure to check an original tenant (up to £20,000 per illegal occupier for a second breach)
- Original tenant liability after assignment: at common law, the original tenant may remain liable for rent if the assignee defaults. Formally release the original tenant in the deed; then require a new guarantor from the incoming assignee
- Deposit: re-serve prescribed information on the new tenant (the assignee). Review deposit protection registration — some schemes require re-registration where the tenant changes
Death of a tenant — statutory succession vs assignment from the estate
When an assured tenant dies, Housing Act 1988 s.17 provides a statutory succession right. Where no statutory successor exists, the tenancy passes to the estate.
- HA 1988 s.17 — statutory succession: one succession permitted to a qualifying person — spouse, civil partner, or cohabitant (living with the tenant as a couple for at least 12 months before death and occupying as their only or principal home)
- Only one succession: an AST can only pass by statutory succession once. If the successor later dies, there is no further succession — the tenancy passes to the estate
- RRA 2025 preserves succession: periodic tenancies from 1 May 2026 are still subject to one statutory succession. No expansion of succession rights beyond HA 1988 s.17
- Where no statutory successor: the tenancy passes to the estate (executor or administrator). The executor can surrender (by agreement with landlord), allow it to run, or assign to a third party with landlord consent. The landlord is not required to consent
- Practical steps on tenant death: establish who is living at the property and whether they qualify as a statutory successor; communicate with the estate; do not remove belongings or change locks without a deed of surrender or court order