If there is no provision on assignment in the lease, then the tenant is free to assign the lease without consent from the landlord.
However, in many cases, the lease will stipulate that the tenant must obtain the landlord’s consent to an assignment.
That consent must be given by Deed, and a formal licence to assign would need to be entered into.
A word of warning - landlords must be careful about granting consent to assign in correspondence between the parties before the licence to assign has been completed.
It is, therefore, advisable that the landlord makes it clear in its initial correspondence that no consent is given unless a completed licence to assign has been entered into.
If it does not make this clear, it is open to the tenant to make arguments that the landlord is deemed to have consented to the proposed assignment.
Where the landlord’s consent is required, section 19(1) of the Landlord and Tenant Act 1927 provides that the landlord is under a duty to not unreasonably without consent.
Section 1 of the Landlord and Tenant Act 1988 (LTA 1988) also imposes further duties on the landlord, which are set out below. However, tenants must be aware that the following duties only arise when a written application is served.
If a written application is not served upon the landlord or the appropriate person, then the duties do not apply.
The duties are as follows:
- To give consent (except where it is reasonable not to do so) within a reasonable time.
- To give written notice of the decision; and
- To pass on applications for consent to the appropriate person.
Reasonable time is deemed to be several weeks rather than months, and the time will generally start when the landlord has been provided with all the relevant information to make their decision.
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