Civil Partnership Act 2004

Transfer of tenancy S

112 Transfer of tenancy S

(1) The court may, on the application of a non-entitled partner, make an order transferring the tenancy of a family home to that partner and providing, subject to subsection (12), for the payment by the non-entitled partner to the entitled partner of such compensation as seems to it to be just and reasonable in all the circumstances of the case.

(2) In an action—

(a) for dissolution of a civil partnership, the Court of Session or the sheriff,

(b) for declarator of nullity of a civil partnership, the Court of Session,

may, on granting decree or within such period as the court may specify on granting decree, make an order granting an application under subsection (1).

(3) In determining whether to grant an application under subsection (1), the court is to have regard to all the circumstances of the case including the matters specified in paragraphs (a) to (e) of section 103(3) and the suitability of the applicant to become the tenant and the applicant’s capacity to perform the obligations under the lease of the family home.

(4) The non-entitled partner is to serve a copy of an application under subsection (1) on the landlord and, before making an order under subsection (1), the court is to give the landlord an opportunity of being heard by it.

(5) On the making of an order granting an application under subsection (1), the tenancy vests in the non-entitled partner without intimation to the landlord, subject to all the liabilities under the lease (other than liability for any arrears of rent for the period before the making of the order).

(6) The arrears mentioned in subsection (5) are to remain the liability of the original entitled partner.

(7) The clerk of court is to notify the landlord of the making of an order granting an application under subsection (1).

(8) It is not competent for a non-entitled partner to apply for an order under subsection (1) where the family home—

(a) is let to the entitled partner by the entitled partner’s employer as an incident of employment, and the lease is subject to a requirement that the entitled partner must reside there,

(b) is or is part of an agricultural holding,

(c) is on, or pertains to—

(i) a croft,

(ii) the subject of a cottar, or

(iii) the holding of a landholder or of a statutory small tenant,

(d) is let on a long lease, or

(e) is part of the tenancy land of a tenant-at-will.

(9) In subsection (8)—

• “agricultural holding” has the same meaning as in section 1 of the Agricultural Holdings (Scotland) Act 1991 (c. 55),

• “cottar” has the same meaning as in section 12(5) of the Crofters (Scotland) Act 1993 (c. 44),

• “croft” has the same meaning as in that Act of 1993,

• “holding”, in relation to a landholder and a statutory small tenant, “landholder” and “statutory small tenant” have the same meanings respectively as in sections 2(1), 2(2) and 32(1) of the Small Landholders (Scotland) Act 1911 (c. 49),

• “long lease” has the same meaning as in section 28(1) of the Land Registration (Scotland) Act 1979 (c. 33), and

• “tenant-at-will” has the same meaning as in section 20(8) of that Act of 1979.

(10) Where both civil partners are joint or common tenants of a family home, the court may, on the application of one of the civil partners, make an order vesting the tenancy in that civil partner solely and providing, subject to subsection (12), for the payment by the applicant to the other partner of such compensation as seems just and reasonable in the circumstances of the case.

(11) Subsections (2) to (9) apply for the purposes of an order under subsection (10) as they apply for the purposes of an order under subsection (1) but subject to the following modifications—

(a) in subsection (3), for “tenant” there is substituted “ sole tenant ”;

(b) in subsection (4), for “non-entitled” there is substituted “ applicant ”;

(c) in subsection (5), for “non-entitled” there is substituted “ applicant ”,

(d) in subsection (6), for “liability of the original entitled partner” there is substituted “ joint and several liability of both partners ”;

(e) in subsection (8)—

(i) for “a non-entitled” there is substituted “ an applicant ”,

(ii) for paragraph (a) there is substituted—

“(a) is let to both partners by their employer as an incident of employment, and the lease is subject to a requirement that both partners must reside there;”, and

(iii) paragraphs (c) and (e) are omitted.

(12) Where the family home is a Scottish secure tenancy within the meaning of the Housing (Scotland) Act 2001 (asp 10), no account is to be taken, in assessing the amount of any compensation to be awarded under subsection (1) or (10), of the loss, by virtue of the transfer of the tenancy of the home, of a right to purchase the home under Part 3 of the Housing (Scotland) Act 1987 (c. 26).