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Introduction
It is possible to ask the court to transfer the tenancy in a rented home from:
Joint names (a joint tenancy) to one party’s sole name
From one party’s sole name to the name of another person
The court can only do this if you lived together as a couple, whether married, civil partners, or cohabitants.
The first step is to try to resolve matters by agreement. Research says that this is how most people deal with it.
Good guides
On this website we can only give the basic outline of things. It’s important to have reliable additional information.
Rights of Women have a really good guide on transfers of tenancy.
Shelter also has some useful information on their webpages about tenancies in relationship breakdown if you are in private rented accommodation or if you are in council or housing association homes. The rules are different.
If you are a victim-survivor of domestic abuse, Shelter has a guide to your housing rights. They also have one for care leavers. Advice Now also has a guide for care leavers.
Transfers by agreement
If a transfer can be agreed between you both and the landlord it is not necessary to apply to court. The landlord will issue a new tenancy agreement in the name of person staying in the house (we’ll call that person ‘you’ in this guide). If your ex is a housing association tenant, they may be able to assign the tenancy instead, which is way of you taking over the existing tenancy.
However, in some cases the landlord will say you have to get a court order. This is often the case with social housing landlords (council and housing association).
Even if a person has left a property, a landlord cannot remove that person’s name from the tenancy without their permission. In some cases, the landlord won’t give permission to transfer the tenancy because they are worried that you can’t afford the rent by yourself, or the property is now too big for you and you need to downsize.
Even if one party’s name is removed from the tenancy, both parties will be responsible for any rent arrears that happened before that date.
The landlord will generally return the tenancy deposit to the bank account from which it was paid, or to the person who paid it.
When you want to leave
Where you have a joint tenancy, you can serve notice to end the tenancy. The way of doing this will be set out in your tenancy agreement. This brings the tenancy to an end for both of you. Be very careful about doing this. If you bring the tenancy to an end, the council may not rehouse you because they may class you a ‘intentionally homeless’. You should not do this unless the landlord has agreed in writing to give you a tenancy in your sole name.
You cannot end the tenancy if you are on a fixed term tenancy, without having to pay the rest of the rent for the period of the fixed term. Some agreements will have ‘break clauses’ that allow you to end the tenancy early in certain circumstances. Read your tenancy agreement to find out if you have one.
When your partner wants you to leave
Your ex can serve notice to end the tenancy and that would end the tenancy for you too. They cannot do this if you are in a fixed term unless they are exercising a break clause or the landlord agrees. However, it is a real risk if you are in an indefinite rolling tenancy. It is possible to seek an injunction to prevent this.
Apart from this, if your name is on the rental agreement, you have the right to remain in the property unless your partner goes to court and gets the tenancy transferred to them, or the court makes an occupation order. This means that if your ex wants to stay in the property and you don’t want to move out, they will need to go to court.
If your name is not on the rental agreement, you have the right to live in the family home if you are married or a civil partner of the person whose name is on the tenancy agreement and the property is or was intended to be your family home. You or your ex can make an application to court for an occupation order to decide who stays in the home.
If you are not married or in a civil partnership and your name is not on the tenancy agreement then you have no right to remain there. You have the right to reasonable notice to leave.
There is further information from Citizens Advice.
Applying to court
Who can apply to court
These rules apply only
To cohabitants, meaning two persons who are neither married to each other nor civil partners of each other but are living together as if they were a married couple or who have separated
Married couples including those divorcing/divorced
Civil partners including ex civil partners
The tenancy has to be for a family home, not for business premises. It has to be for a property you lived in together as a couple. If you are or were married or in a civil partnership with the other person, then it can also be a property you intended to be your family home even if you never lived there together.
When to apply to court
If you are married or in a civil partnership, you cannot apply to court for a transfer of tenancy until at least the conditional order stage in your divorce.
If you are cohabitants who were not married or civil partners, you can apply at any time.
Seek advice if you are annulling your marriage or having a judicial separation.
Writing the application form and witness statement
Your will need to use form D50B to apply to court. Our short guide tells you how to complete this. You will also need to write a witness statement explaining the situation and giving information about the property. Think of a witness statement as a letter to the judge that is formatted in a certain way and contains the information the judge needs.
We have a template you can download and use to write a witness statement. [upload word document]
You may have to pay the court fee, depending on your income. Our page on fees explains this and tells you what fee to expect.
Send the application and the fee or your fee remission form/code to your local court.
Serving the application
You will need to ‘serve’ the application which means send it to your ex and the landlord. Wait for the court to issue your application and add the court date, then post copies to the others. This is usually done by normal first class post.
The landlord’s address for service will be on the tenancy agreement.
You will need to prove to the judge that they have been sent the documents. You do this by completing and sending the court a Statement of Service.
Get legal advice if your ex is abroad or if they are in a refuge.
Going to the hearing
The court will hold a hearing. It will be ‘in chambers’, meaning that it will be in the judge’s office and not in a big courtroom. You and your ex will both be at the hearing. If you are applying, you will need to explain to the judge what you want, but the judge should have your documents in front of them already. The judge will then ask your ex what they think. The judge may have some questions for both of you.
Cohabitants
If you are cohabitants and you are seeking to transfer a tenancy in your ex’s sole name to you, Schedule 7 Family Law Act 1996 says that the judge will consider all the circumstances before making his or her decision, including
The circumstances in which one or both of you got the tenancy
Your suitability as a tenant
You and your ex’s housing needs and resources and those of any child
You and your ex’s financial resources
The likely effect on your and your children’s health safety or wellbeing if the judge doesn’t make the order
The nature of your relationship with your ex and in particular the level of commitment involved in it
The length of time during which you lived together
Whether you and your ex have/had any children together or for whom you’ve both have or have had parental responsibility.
Married couples/civil partners
If you are married or civil partners, then Schedule 7 Family Law Act 1996 says that the judge will consider all the circumstances before making his or her decision, including
The circumstances in which one or both of you got the tenancy
Your suitability as a tenant
You and your ex’s housing needs and resources and those of any child
You and your ex’s financial resources
The likely effect on your and your children’s health safety or wellbeing if the judge doesn’t make the order