A more recent version of these Assignment Underletting notes – written by Cambridge And Oxilp And College Of Law students – is available here.
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Underletting Definitions Assignment An assignment is where a Tenant sells on the remainder of an existing term of a lease to another party (the 'Assignee') who then becomes the Tenant of the Landlord. The Landlord's consent will be required before assignment can occur. This consent will be documented in a License to Assign which is signed by the Tenant, Landlord and Assignee (creating privity of contract). A TR1 will be used to register the new assignee on the existing lease (if the lease is already registered) within 28 days (i.e. the OS1 priority period). If the lease is not registered then a Deed of Assignment will be used. Deeds of Guarantee can also be required to ensure the Assignee can meet their obligations under the lease.
Underletting An underletting is where a Tenant grants a lease out of their own lease (called an 'underlease'). The terms of the underlease will be the same as the 'headlease' (the Tenant's original lease) with the exception of rent. The Landlord's consent will be required before an underletting can occur. This consent will be documented in a License to Underlet which is signed by the Tenant, Landlord and Sub-Tenant (creating privity of contract). The Sub-Tenant will use a TR1 to register the underlease if it is over 7 years in length. Deeds of guarantee can also be used to ensure the Sub-Tenant can meet their obligations under the underlease.
Alienation What Clause Relates to Alienation?
Identify the lease clause and what type of alienation it relates to: i.e. assignment or underletting. If there are no restrictions on alienation in the lease then the Tenant may do what they please. Clauses in the lease help the Landlord restrict the Tenant's freedom.
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