Transferring Council & Housing Association Tenancies on Divorce
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Divorce-Online receives a lot of questions from married couples who need information on what they need to do about transferring rental properties after divorce.
Here is a quick guide on transferring council and housing association tenancies.
Most of the information on the net deals with couples who own their own homes, but increasingly more and more couples are renting and need advice on what to do about rental properties, especially if they have secure council houses or housing association tenancies.
It is possible for the court to make a property adjustment order in respect of a tenancy including a council house tenancy and a housing association tenancy.
The court also has power under the Family Law Act 1996 to order the transfer of certain types of tenancies. This order is binding on the council or housing association.
Renting in both names
There can be a problem if the tenancy is a periodic tenancy in joint names, i.e one that has no defined end date as it can be ended by either of the joint tenants by giving the notice to quit without the other person agreeing.
If you cannot agree to the transfer of the tenancy, you may need to get what is called an injunction from the court to prevent the other tenant from giving notice.
Once the tenancy is at an end the court cannot order a transfer as there is no tenancy to transfer, so it makes sense to act early if you think this is going to happen. Legal aid is still available in certain circumstances for housing matters.
As a joint tenant, you are entitled to live at the property and you are jointly liable to pay the rent and ensure that you do not break the conditions of your tenancy.
If you separate and leave the property without dealing with the tenancy you will remain liable for the rent until the dispute about the tenancy has been involved.
Renting in just your name
If the tenancy is in your sole name you are the legal tenant. If your spouse’s name is not on the tenancy agreement they may still have “home rights”.
These are if they are in occupation a right not to be evicted except with leave of the court and, if not in occupation, a right with leave of the court for them to enter and occupy the home.
If you are unmarried and your partner’s name is not on the tenancy agreement they have no legal rights and you can ask them to leave.
Renting in your partner’s Sole Name
If you are not the tenant you can be asked to leave. Your only protection is to apply to the court for an order allowing you “occupation” of the property and a transfer of the tenancy. You may be able to get legal aid if this will make you homeless.
It is always worth speaking to your local council housing officer or Housing Association before embarking on any course of action as they may be able to offer alternative accommodation to both of you as it may mean, the property you are living in can be freed up for someone else more suitable.
Your local authority generally will not enable a transfer of the tenancy without a court order.
Divorce-Online can deal with a tenancy transfer order as part of our divorce and consent order services.