Refusing a Swap: The Law

19 Feb 2019

We’ve all heard stories of tenants finding a swap, only to be let down at the last minute; even when a council or housing association approves a mutual exchange they can still fall through.

When this happens at the last minute it can be heartbreaking, not to mention expensive. But are those who pull out breaking the law? Why would your landlord refuse a swap? And what can you do to protect yourself?

Pulling out: the swapper

Whether it’s a direct swap or a MultiSwap, to legally complete your exchange the final step you have to take is to have yourself and all other tenants involved sign a ‘Deed of Assignment’. This is a legal document, which puts your name officially on the tenancy of your new home. Up until this point you have the right to pull out of a swap, as do the other swappers you are planning the exchange with.  This is an example Deed of Assignment provided by the National Landlords Association.

You’ll need to go to an appointment with the other swapper(s) and all landlords involved to sign the Deed of Assignment and you may be asked to bring ID or your original tenancy agreement. Some councils or housing associations may ask for a deposit or a period of rent upfront, so make sure everyone is ready for this. There will be more than one Deed of Assignment; one for each property in the swap. They all need to be signed and completed.

If you move without having signed a Deed of Assignment you will be staying in your new home illegally. At this point you may be asked to move back to your original property… and if this doesn’t happen you could end up losing your tenancy and in turn, become ‘intentionally homeless’.

Refusing a swap: the landlord

There are by law, only 10 reasons why a landlord can refuse a swap and these will all be reviewed before you get to the point of signing the Deed of Assignment. The most common reasons are that a tenant is subject to a ‘Notice of Seeking Possession’, or they want to move to a property that’s much bigger or smaller than they actually need. Below we’ll list out all the legal reasons a landlord can refuse a swap and what they mean:

 

1. Court order

A court order is already in place to remove you, or your swap partner, from the property at a date in the future.

2. Eviction notice

You, or your swap partner has an eviction notice against them – your landlord has started legal proceedings to remove you from the property.

3. Too big

Either your home is bigger than your swap partner needs, or their home is bigger than you need. It’s important to note that “need” is based on the government’s rules, not on whether you think you need more space. There’s a handy calculator here. Some landlords will allow this, as long as your affordability checks show that you can afford the extra room.

4. Too small

The home you want to move into isn’t big enough for your family, or your home isn’t big enough for your swap partner’s family. Again, this is based on the government rules, not what you think might be suitable.

5. Your job or community connection

This means if you’ve got your home, or your swap partner has theirs because of the job you’re in – you might work for the council or landlord – or because of your position in the community. There are also some landlords that might refuse a swap because they need to prove a ‘local connection’ to rent the home.

6. Home is for a specific group within society

Social landlords are charities and some, particularly smaller ones were started to support certain groups of people, for example ex-soldiers. If you don’t fit into these categories, the landlord can refuse your application.

7. It’s adapted and you’re not disabled

The home has been adapted for someone with a disability, and the person moving in doesn’t need these adaptations.

8. Landlord only lets homes to people with certain needs

The landlord only lets homes to people in particular circumstances – these could be health or disability related – and you don’t meet these criteria.

9. Special needs, e.g. sheltered homes for adults

Usually, this means that the home is a sheltered home, or has nearby support for older people or those with limited mobility. This is usually the rule that means that younger adults with no special needs are not able to move into sheltered housing. 

10. You don’t want to join a management agreement

Some housing associations have membership arrangements to cover areas like communal space etc. This particularly happens in blocks of flats. If over half of the residents are members and you’re not - and you’re not prepared to join – the landlord can refuse your swap.

Swaps can fall through for a number of reasons and whilst this can be disheartening, it is important to remember that there are a number of valid reasons to pull out of a swap, or to have a swap refused. To protect yourself, don’t organise any major life changes, such as taking your children out of school or handing in your notice at work until the Deed of Assignment has been completed. You have the legal right to do this at any point before the paperwork is signed. Even if you feel you may have let someone down, notifying your swapping partner(s) as soon as you can will really help them moving forward. Until the final piece of the jigsaw has been completed, stay flexible and emotionally at arm’s length. The one that fell through may not have been the right home;

try to stay positive that you will find the right swap for you.