Alienation

Partner Dan Evans, considers the options open to tenants if they want to leave their lease before the end of the contractual period.  

This is a very common enquiry and there are four main options available: Surrender, Break Clause, Sub-letting and Assignment.

Surrender

This isn’t available to tenants in most cases. Why would a landlord let you simply walk away, leaving them with a vacant property? That being said, it can sometimes be negotiated (especially where the market has improved), so it may be worth asking the question. 

Break clause

If it is in your lease then you can exercise the same - but if it isn’t, you have no right to terminate the lease early. This is why it is so important to take the right advice when taking on a lease.

Sub-letting

This is where you put your own tenant into the property. You still remain the tenant and have a direct contractual relationship with your landlord, but the sub-tenant pays whatever rent you set. Most leases require a landlord’s consent to the grant of a sub-lease and sets out the terms on which it can be done.  

Leases generally only permit a sub-lease of the whole of the property and the rent must be the open market rent. A sub-lease means that you are still involved and, compared to the option of assignment, below, you may consequently have a better idea of how a sub-tenant is performing. 

It can also give flexibility ie you can sublet for a short period and then take back the lease and carry on your occupation in due course.  

Assignment

This is a transfer of the lease to a new tenant. A lease assignment will normally require landlord’s consent and set out conditions for consent. A landlord will undertake due diligence into the proposed tenant to ascertain whether they will be able to comply with the terms of the lease. 

A common condition is that the outgoing tenant will need to enter into an “Authorised Guarantee Agreement”, by which you guarantee the performance of the incoming tenant.  If the incoming tenant defaults, then the landlord may turn to you and you have to make good the default. This is extremely onerous and emphasises the importance of considering the covenant strength of the incoming tenant. A quick assignment to get the lease out of your name can come back to bite you if you’re not careful…