difference between transfer assignment

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What is The Difference Between Assignment and Transfer

In real estate, sometimes contracts change hands after the deal is signed. But what does this mean?

AN ASSIGNMENT of a real estate contract means one of the original parties of the contract, (known as the Assignor) gives up all of their rights and responsibilities to another party (called the Assignee). The Assignor is usually the original Buyer of the property.

All obligations under the terms of the original contract revert to the Assignee when the sale transaction completes. The Assignor becomes the middleman, making a profit by selling the Assignment at a higher price than was contemplated in the original contract, or by receiving an Assignment Fee for completing the transaction.

A TRANSFER is the transfer of title (legal ownership) to the property. An Assignor can only assign the rights and responsibilities of the real estate contract, but cannot convey or transfer title of the property as they do not hold ownership of it prior to closing. The transfer would be completed on closing and would pass from the Seller to the Assignee.

Benefits Of An Assignment

• Assignors (the original purchaser) can sometimes make a quick profit by selling a Purchase Contract at a higher rate than what they were going to pay for the real estate property.
• The original purchaser can often negotiate to get their original deposit back from the Assignee. When the original purchaser entered into the purchase contract, they likely paid a deposit to the Seller. As part of the Assignment Agreement, the Assignee can be required to pay the deposit to the Assignor as consideration for the transaction.
• The Assignor avoids having to pay closing costs and property transfer tax since the Assignee, or new buyer will take that responsibility at closing.
• The Assignor relieves themselves of the obligations of the Purchase Contract without backing out of the deal with the Seller or Developer. Backing out of a Purchase Contract comes with certain difficulties since it’s a legally binding contract. There may be penalties due to the Developer if a buyer backs out or even lawsuits where the Developer tries to enforce the contract. Selling it as an Assignment, therefore, means the original buyer can avoid those potential expenses or liabilities.

As with any home purchase, it’s always a good idea to hire a real estate professional to assist you. Their professional experience can guide you to the right decision for your personal situation while avoiding any difficulties or unexpected hurdles.

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Difference between Transfer and Assignment

19 Feb 2022  · 4 mins read

A single word may have more than one meanings. One might wonder how complex language is and how confusing words are. Transfer and assignment are such similar terms interchangeably used yet different in legal sense. The article discusses the meaning, types of assignment and how it is different from that of transfers.

In simple terms, assignment means the sale of IP i.e., the transfer of complete ownership to the assignee including the right to exclude others from infringing it. To constitute an assignment, the terms and conditions of contract under the Indian Contract Act, 1872. The agreement must be signed and written. The specific IP laws determine the features of such assignment in detail. In Copyright law partial assignment is also permitted under section 18, which requires to mention specifically the rights assigned. Also, it is necessary to mention the time period for which the assignment is made. In the absence of such time period, generally 5 years is taken as a limit. Assigner is the owner who assigns it to another person known as assignee.

Assignment is different from that of licensing in a way that the latter only parts with certain rights and the ownership rests with the person who is ready to give away the rights.

The following are some of the common types of assignment:-

Legal Assignment- When the transfer of existing registered IP is transferred, wherein the new owner acquires all rights, it is known as legal assignment.

• Equitable Assignment- It occurs when before the registration, the assigner is willing to transfer it to the assignee. Once the registration is done the assignee can acquire all the rights. Although the assignee cannot register himself as the proprietor but can show interest in the IP through a notice.
• Mortgage- It is the total or partial transfer of IP in return of a sum of money. Once the money is repaid, the IP is reinstated to its original owner.

On the other hand, transfer means to convey or remove from one person or place to another person. Transfer is of titles whereas the Assignment is for obligations and rights. 1

The term transfer is generally used for properties that can be possessed physically. For example, a car or house or those properties which can be represented by a legal instrument such as share

certificate.

Assign is generally associated with intangible properties such as a debt, or benefits arising from contracts for example rental income under a lease agreement. 2

An assignment is thus different from other type of transfers such as subrogation, novation, sublease etc. Assignment is basically the transfer all rights, interests, titles which the assigner conveys to assignee and the latter stands in the shoes of the assigner. 3

Though the difference between novation and assignment is narrower, one ought to know the difference. “ Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party. ” 4

And for the transfer of the property, the Transfer of Property Act, 1882 applies. It extensively deals with various kinds of transfers. There are certain set rules for transfer of property. For instance, one needs to be of sound mind, not intoxicated, of legal age and must not be disqualified by law. The Act lists kinds of transfer such as lease, mortgage, exchange, gift and sale.

To sum up, though the words transfer and assignment is used interchangeably there is a difference between them. They are governed by different legislations and are used for different purposes. So one needs to be careful and understand all the legal provisions before transferring anything.

1 Difference between Assignment and transfer, UPCOUNSEL, (Nov 09, 2021, 5: 25 pm), https://www.upcounsel.com/difference-between-assignment-and-transfer . 2 Merchants Service Co. v. Small Claims Court, 35 Cal. 2d 109, 113-114 (Cal. 1950).. 3 Knott v. McDonald’s Corp., 985 F. Supp. 1222 (N.D. Cal. 1997). 4 Assignments: the basic law, STIMMEL LAW, (Nov 9, 2022, 5: 48 pm), https://www.stimmel-law.com/en/articles/assignments-basic-law .

Assignment vs Novation: Everything You Need to Know

Assignment vs. novation: What's the difference? An assignment agreement transfers one party's rights and obligations under a contract to another party. 4 min read updated on September 19, 2022

Assignment vs. novation: What's the difference? An assignment agreement transfers one party's rights and obligations under a contract to another party. The party transferring their rights and duties is the assignor; the party receiving them is the assignee. Novation is a mechanism where one party transfers all its obligations and rights under a contract to a third party, with the consent of the original counterparty.

The transfer of a benefit or interest from one party to another is referred to as an assignment. While the benefits can be transferred, the obligation or burden behind the contract cannot be. A contract assignment occurs when a party assigns their contractual rights to a third party. The benefit that the issuing party would have received from the contract is now assigned to the third party. The party appointing their rights is referred to as the assignor, while the party obtaining the rights is the assignee. 

The assignor continues to carry the burden and can be held liable by the assignee for failing to fulfill their duties under the contract. Purchasing an indemnity clause from the assignee may help protect the assignor from a future liability. Unlike notation, assignment contracts do not annul the initial agreement and do not establish a new agreement. The original or initial contract continues to be enforced. 

Assignment contracts generally do not require the authorization from all parties in the agreement. Based on the terms, the assignor will most likely only need to notify the nonassigning party.

In regards to a contract being assignable, if an agreement seems silent or unclear, courts have decided that the contract is typically assignable. However, this does not apply to personal service contracts where consent is mandatory. The Supreme Court of Canada , or SCC, has determined that a personal service contract must be created for the original parties based on the special characteristics, skills, or confidences that are uniquely displayed between them. Many times, the courts need to intervene to determine whether an agreement is indeed a personal service contract.

Overall, assignment is more convenient for the assignor than novation. The assignor is not required to ask for approval from a third party in order to assign their interest in an agreement to the assignee. The assignor should be aware of the potential liability risk if the assignee doesn't perform their duties as stated in the assigned contract.

Novation has the potential to limit future liabilities to an assignor, but it also is usually more burdensome for the parties involved. Additionally, it's not always achievable if a third party refuses to give consent.

It's essential for the two parties in an agreement to appraise their relationship before transitioning to novation. An assignment is preferential for parties that would like to continue performing their obligations, but also transition some of their rights to another party.

A novation occurs when a party would like to transfer both the benefits and the burden within a contract to another party. Similar to assignment, the benefits are transferred, but unlike assignment, the burden is also transferred. When a novation is completed, the original contract is deleted and is replaced with a new one. In this new contract, a third party is now responsible for the obligations and rights. Generally, novation does not cancel any past obligations or rights under the initial contract, although it is possible to novate these as well.

Novation needs to be approved by both parties of the original contract and the new joining third party. Some amount of consideration must also be provided in the new contract in order for it to be novated, unless the novation is cited in a deed that is signed by all parties to the contract. In this situation, consideration is referring to something of value that is being gained through the contract.

Novation occurs when the purchaser to the original agreement is attempting to replace the seller of an original contract. Once novated, the original seller is released from any obligation under the initial contract. The SCC has established a three-point test to implement novation. The asserting party must prove:

• The purchaser accepts complete liability
• The creditor to the original contract accepts the purchaser as the official debtor, and not simply as a guarantor or agent of the seller
• The creditor to the original contract accepts the new contract as the replacement for the old one

Also, the SSC insisted that if a new agreement doesn't exist, the court would not find novation unless the precedence was unusually compelling.

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Transfer And Assignment Agreement: Definition & Sample

Jump to section, what is a transfer and assignment agreement.

A transfer and assignment agreement is a legal document that outlines the terms and conditions of the transfer of an employee from one company to another. It also includes the assignment of all rights and obligations, including any IP or confidential information. This document can be used to protect both the employee and the employer in case of any disputes. When negotiating a transfer and assignment agreement, it is important to consider all potential risks and liabilities.

Common Sections in Transfer And Assignment Agreements

Below is a list of common sections included in Transfer And Assignment Agreements. These sections are linked to the below sample agreement for you to explore.

Transfer And Assignment Agreement Sample

Reference : Security Exchange Commission - Edgar Database, EX-10.7 10 dex107.htm FORM OF SALE, TRANSFER AND ASSIGNMENT AGREEMENT , Viewed April 26, 2022, View Source on SEC .

Who Helps With Transfer And Assignment Agreements?

Lawyers with backgrounds working on transfer and assignment agreements work with clients to help. Do you need help with a transfer and assignment agreement?

Post a project  in ContractsCounsel's marketplace to get free bids from lawyers to draft, review, or negotiate transfer and assignment agreements. All lawyers are vetted by our team and peer reviewed by our customers for you to explore before hiring.

ContractsCounsel is not a law firm, and this post should not be considered and does not contain legal advice. To ensure the information and advice in this post are correct, sufficient, and appropriate for your situation, please consult a licensed attorney. Also, using or accessing ContractsCounsel's site does not create an attorney-client relationship between you and ContractsCounsel.

Meet some of our Transfer And Assignment Agreement Lawyers

Scott Bowen, Esq brings legal experience in family law, special education law, and healthcare law matters. Scott also has over 20 years of expertise in healthcare compliance, medical coding, and healthcare consulting to the firm.

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Nuo Jia (Lois) L.

Attorney Lois Li is a bilingual business and commercial attorney licensed in Michigan, U.S. since 2014, in Ontario, Canada since 2015, and in New York, U.S. since 2020. As an attorney licensed in two countries, Lois leads Alpine Law’s US/China/Canada practice. She is experienced in legal and contractual transactions in both English and Chinese. Lois has over six years of experience in assisting clients with business operations and legal services, and is specialized in advising companies with legal needs in International Business, Securities law, Cryptocurrency – Block chain, and Fin-Tech. Having served as both an outside and an in-house counsel, Lois worked with many startup and small businesses. With a strong understanding of core business and the ability to translate business needs into legal requirements, Lois has assisted many companies to establish policies and procedures, and drafted and negotiated employment and transaction contracts. Further licensed as a Registered Nurse since 2010, Lois specializes in healthcare law and is experienced in FDA, HIPAA, Medicare and Medicaid regulations. She has assisted many businesses in the medical and healthcare industry.

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Assignment is a legal term whereby an individual, the “assignor,” transfers rights, property, or other benefits to another known as the “ assignee .”   This concept is used in both contract and property law.  The term can refer to either the act of transfer or the rights /property/benefits being transferred.

Contract Law   

Under contract law, assignment of a contract is both: (1) an assignment of rights; and (2) a delegation of duties , in the absence of evidence otherwise.  For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C.  That is, this assignment is both: (1) an assignment of A’s rights under the contract to the $50; and (2) a delegation of A’s duty to teach guitar to C.  In this example, A is both the “assignor” and the “delegee” who d elegates the duties to another (C), C is known as the “ obligor ” who must perform the obligations to the assignee , and B is the “ assignee ” who is owed duties and is liable to the “ obligor ”.

(1) Assignment of Rights/Duties Under Contract Law

There are a few notable rules regarding assignments under contract law.  First, if an individual has not yet secured the contract to perform duties to another, he/she cannot assign his/her future right to an assignee .  That is, if A has not yet contracted with B to teach B guitar, A cannot assign his/her rights to C.  Second, rights cannot be assigned when they materially change the obligor ’s duty and rights.  Third, the obligor can sue the assignee directly if the assignee does not pay him/her.  Following the previous example, this means that C ( obligor ) can sue B ( assignee ) if C teaches guitar to B, but B does not pay C $50 in return.

            (2) Delegation of Duties

If the promised performance requires a rare genius or skill, then the delegee cannot delegate it to the obligor.  It can only be delegated if the promised performance is more commonplace.  Further, an obligee can sue if the assignee does not perform.  However, the delegee is secondarily liable unless there has been an express release of the delegee.  That is, if B does want C to teach guitar but C refuses to, then B can sue C.  If C still refuses to perform, then B can compel A to fulfill the duties under secondary liability.

Lastly, a related concept is novation , which is when a new obligor substitutes and releases an old obligor.  If novation occurs, then the original obligor’s duties are wiped out. However, novation requires an original obligee’s consent .  

Property Law

Under property law, assignment typically arises in landlord-tenant situations.  For example, A might be renting from landlord B but wants to another party (C) to take over the property.   In this scenario, A might be able to choose between assigning and subleasing the property to C.  If assigning , A would be giving C the entire balance of the term, with no reversion to anyone whereas if subleasing , A would be giving C for a limited period of the remaining term.  Significantly, under assignment C would have privity of estate with the landlord while under a sublease, C would not. 

[Last updated in May of 2020 by the Wex Definitions Team ]

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• 13 March 2018
• Commercial Real Estate

Novation and Assignment: Sisters, Not Twins

There’s often, understandably, a bit of uncertainty about whether (and how) a party to a contract can “assign” (transfer) its rights, or pass on its obligations, under that contract, to another person.

In law, the general rule is that only the original parties to the contract can discharge or fulfil the obligations and enforce the rights created under it and nobody else gets a look in. This is called “privity of contract”.

Essentially, novation and assignment are both mechanisms to get around this restriction. However, while the end result is the same, there are some important differences between these two mechanisms.

Under an assignment, one party (the assignor) keeps performing their obligations under the contract, but transfers some or all rights to a third party (the assignee). The parties to the contract remain the same so privity of contract is preserved.

Assignments can be legal or equitable. In order for an assignment to be a legal assignment, the assignment must be agreed in writing, signed by the assignor, and the other party to the contract must be given notice of the assignment. A legal assignment is usually preferable as this allows the assignee to enforce the rights in their own name directly.

If the assignment is an equitable assignment because it does not fit the criteria for a legal assignment (for example, the other party was not given notice of it), the assignee will need to get the assignor to enforce the assigned rights on its behalf.

Contracts often require the consent of the other party before any assignment can take place. Some contracts expressly prohibit assignment. However, even where there is such wording in the contract, there is nothing stopping you from asking the party to consent to the assignment anyway, though you should take care to record any agreement in writing.

The main point to remember is that you cannot assign obligations under a contract to another party – you can only assign your benefits or rights. Even if the assignee agrees that they will take on the obligations under the contract, it is still the assignor who remains responsible for performance of the obligations and liable if they are not. In practice, what often happens is that the assignee does take over the performance of the contractual obligations but simply agrees to indemnify the assignor for any failures in performance.

It is also important to note that some rights may not be legally capable of assignment.

When you novate a contract, the original contract effectively ceases to exist and is replaced with a new contract. The new contract contains exactly the same rights and obligations as the original contract, except that it substitutes one of the original parties (the outgoing party) with a third party (the incoming party).

As you are creating a new contract, technically you need to provide fresh consideration. Usually a simple novation agreement between all the parties will be enough, but, if there is any doubt, the parties may choose to execute the novation as a deed instead, which dispenses with the need for consideration.

The novation agreement (or deed) will specify what happens to the liabilities under the original contract. In a typical novation, the outgoing party would be released from all liabilities and the incoming party would inherit these. However, this is up to the parties to decide; they could even decide that the outgoing party will remain liable for all of the liabilities under the original contract.

Novating the contract will release the outgoing party from any future obligations which may arise. This is a crucial difference between novation and assignment.

Although the novation agreement itself can be simple, the process of getting all the parties to the table to agree and execute might be more complex. The main issue for an outgoing party will be persuading the other original party to sign. The other original party often has concerns about service continuity and may want certain assurances or information about the incoming third party.

Equally, the other original party is not obliged to agree: they can refuse to novate and then sue for breach if the party trying to exit the contract fails to meet its contractual obligations. As they still have this other option, in any novation scenario, the outgoing party is probably in a weaker bargaining position, and the other original party may well use this to their advantage.

About this article

• Subject Novation and Assignment: Sisters, Not Twins
• Expertise Commercial Real Estate
• Published 13 March 2018

Disclaimer This information is for guidance purposes only and should not be regarded as a substitute for taking legal advice. Please refer to the full General Notices on our website.

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Novation and assignment

Changing the parties bound to a contract

What is novation, is novation a new contract, what is a deed of novation, why novation can be difficult, when do you use an assignment agreement to transfer a debt or obligation, transfer of a debt, transfer of service contracts.

Novation and assignment are ways for someone to transfer their interest in a contract to someone else.

Whilst the difference between assignment and novation is relatively small, it is an essential one. Assigning when you should novate could leave you in a position of being liable for your original contract when the other party is not liable to perform their obligations.

In contract law the principle of privity of contract means that only the parties to a contract have the obligation to fulfill it and the right to enforce it. Statute law has created a few exceptions but they apply rarely.

The legal concepts of novation and assignment have been developed to overcome the restrictions imposed by the doctrine.

Novation is a mechanism where one party transfers all its obligations and rights under a contract to a third party, with the consent of their original counter-party.

Novation in practice

Let us suppose Michael buys a car from Peter, owing him £5,000 as part of the sale price until Peter obtains a certifcate of authenticity.

Michael then sells the car to Fred under the same terms. Michael wants out, but has obligations to both parties.

Michael persuades Peter and Fred to enter into a novation agreement, signed by all three of them, whereby Fred takes over Michael’s obligations to Peter and Fred now deals with Peter in Michael’s place.

Other examples

The seller of a business transfers the contracts with their customers and suppliers to the buyer. A novation process transfers each contract by the mutual agreement of all three parties.

A design and build contractor in the construction industry transfers a construction contract to a new, substitute contractor. A novation agreement is necessary.

A novation agreement is a new contract that 'extinguishes' the old one.

Because it is a new contract, there can be new terms within it, giving additional rights and obligations.

There are times when and why you should use a deed explains exactly when you need to use one. Novation is not among them.

A Deed of Novation is a relic from long ago when lawyers were even more inclined to cloak their knowledge in obscurity.

One of the main purposes in using the deed format is that it provides the necessity for an unconnected witness to sign the document. So it is that much more difficult for one of the parties to say it was forged or signed a year later than the date shown.

But in a novation, there are at least three parties by definition; three parties who are most unlikely to be connected and each of whom has their separate interest. So you can be pretty sure the agreement has not been tampered with. A witness cannot improve on that. So you do not need a deed.

Another reason to use a deed could be when there is no 'consideration', that is when one of the original contracting parties receives no benefit - monetary or otherwise - in return fot the novation. However, in commercial circumstances you could nearly always argue that there is an advantage to each of the parties. The extinction of the old contract or subjectively more favourable terms within the new contract would both count as fair consideration.

Do you need a deed of novation for your situation? The answer is usually no, as an agreement is fine.

The exception to the rule is that if the original contract was signed as a deed, you need to use a deed to novate it. Real property transaction are by deed. That includes a consent to assign a lease, which has three parties. There are special reasons for that.

There are other examples too, which are more obscure.

When a contract is novated, the other (original) contracting party must be left in the same position as they were in prior to the novation being made.

Novation requires the agreement of all three parties. While obtaining the agreement of the transferor and transferee is easy, obtaining the agreement of the other original party can be more difficult:

The other original party may not understand the benefit to them of having the original contract novated and require extra information about the process that is time consuming to provide.

They may need extra assurance to be persuaded that they won’t be worse off as a result of the novation (especially common where there is a transfer of service contracts between suppliers).

It is possible that they could play up to delay the transfer and squeeze extra concessions from you.

The only way to transfer your rights or obligations is by an agreement signed by all three parties.

But what happens if you are a service provider selling your business with tens of thousands of customers? You can hardly ask every one of them to sign up to their own separate novation.

In practice, a well drawn original agreement will contain a provision which permits the service provider to assign (transfer its contract) without the permission of the customer.

But what happens if it does not?

In practice what happens is that the buyer 'takes a flyer'. The deal is done in the hope that the customers stay with the new owner.

Maybe the buyer obtains an indemnity from the seller to cover their loss if many leave. Maybe the buyer will write to the customers to encourage them to stay. Maybe the customers simply make the next payment and thereby confirm acceptance in law.

In each of those cases, the acquirer will be safe because the customers remain (or become) bound to the terms of the original contract.

Net Lawman offers an assignment agreement to cover that exact situation, together with a draft letter of the sort that might convince customers to stay with the new owner.

The other situation in which assignment is used is where the new party trusts the original party assigning the contract. For example, a subsidiary company may assign contractual obligations to a parent company confident that the parent will uphold the contract.

A construction company is a subsidary in a group. It is working in partnership with another business on several projects to build houses. The other business is a minor partner in the deal. The partnership has run out of money and the smaller partner is unable to inject any more funds. The parent business is unwilling to have its subsidiary fund the remainder of the projects by itself.

A solution may be for the parent to pay both its subsidiary and the third party for the construction contracts to be assigned to it (in other words, buy the contractual rights from the partnership). The assignment provisions would give the parent the obligation to finish the project, which it may be able to do without the third party.

Assignment transfers benefits only

Even if the assignee promises to take on the liability of the assignor to the third parties, the assignor remains personally liable if they fail to do so. An obligation to a third party cannot be assigned without their consent.

When assignment can invalidate your contract

Terms in an original contract can restrict or prohibit assignments. This is particularly common in construction contracts but can apply in any agreement. If you attempt to assign a contract that cannot be assigned, you risk invalidating the original contract.

Personal obligations and assignment

Be particularly careful of an assignment if your obligations can only be performed personally. A good example would be sale of a hair dressing business. Quite apart from the risk of the clients leaving, the actual forward appointments could be interpreted as contracts with the seller, even though they would have no way to fulfill them because they have sold the business.

Buying the right document

Very generally, if you are unsure whether you should assign or novate, we recommend that you novate and obtain consent of all parties. We offer a number of novation and assignment agreement templates for different situations.

For example: You borrow from a lender and you later want to transfer the debt to someone else (maybe a friend, a business partner or a the buyer of your business) so that they become liable to repay the lender instead of you. In this situation you should use an agreement that novates the debt .

This is a common consideration when a business is sold and outstanding debts of the business are transferred to the new owner (perhaps loans of money but maybe also loans of goods for sale).

Alternatively, you could novate in order to change who should pay back a personal loan between individuals.

Transfer of a right to receive the repayment of a debt

For example: You make a loan to someone (it could be money or goods) and later you want to change who receives the repayment (an agreement to change who the creditor is ).

The transaction might relate to the sale of a business where the buyer takes on the assets of the seller (the loans to other parties), or when factoring debt.

For example: You provide a service to someone and you want to transfer the obligation of providing that service to another person or company.

Again, a common use for a service contract novation agreement is where a business is sold and the buyer takes on the service contracts of the seller. The service could be in any industry, from a fixed period gardening contract to an on-going IT or website maintenance. Novation changes who is providing the service.

Transfer of an architectural or building contract

For example: You buy a building or property development that is still under construction and you want the existing contractor to continue work despite the original contract being between the contractor and the seller.

In this situation you should use a novation agreement for a building contract .

Our standard assignment agreement can be used for most assignments (exceptions given below). It is not specific to circumstances.

Assignment of a business lease

If you wish to transfer a commercial property lease to another business tenant during the fixed term, Net Lawman offers an agreement to assign a lease .

We have an article specifically about assigning a business lease that may be useful further reading.

It is not advisable to assign a residential tenancy agreement. We would suggest that you cancel the original agreement and draw up a new agreement with the new tenants.

Assignment of copyright

We have  number of assignment agreements for intellectual property rights .

They are effectively sale or transfer agreements where some rights are retained by the seller (such as to buyback the assigned work, or for the work only to be used in certain locations).

They relate to IP in media (such as a film or a music score) and to inventions.

Assignment of a life insurance policy or endowment policy

These agreements allows you to transfer the rights to receive payments from a life insurance policy or endowment policy. We offer both a deed of assignment of a policy on separation or divorce and a deed of assignment to gift or sell the policy to someone else .

Assignment and collateral warranties in the construction industry

Probably the most common use of assignment in the construction industry today is in relation to collateral warranties.

The collateral warranties given by consultants, contractors and sub-contractors in construction contracts are often assigned to subsequent owners or leases. Assignment can do no more than transfer rights available to the assignor. It is not capable of creating new rights and obligations in favour of an assignee.

So while the client can, in theory, assign the right to have a building adequately designed, it is unclear what right would be transferred to sue for damages in the event of breach. If the developer (who would usually be the assignor) has sold the building or created a full-repairing lease, then their right would be to nominal damages only. This is one situation where you should definitely use a deed of novation.

Novation vs Assignment: Changing Parties in Contracts and Obligations

Readers looking to understand novation and assignment agreements will likely agree that navigating changing parties in contracts can be complex.

This guide provides a clear framework for deciding between novation and assignment, walking through key differences, legal considerations, real-world applications, and best practices to master the process.

You'll gain actionable insights on drafting novation agreements, securing consent, ensuring smooth obligation transfers, overcoming common hurdles, and more to confidently change parties in contractual obligations.

Introduction to Novation and Assignment

Novation and assignment are two legal concepts that involve transferring rights and obligations from one party to another in a contract.

Novation refers to substituting one party to an agreement with a new party, creating new contractual obligations. Assignment involves transferring rights or obligations from one party to another without necessarily releasing the assignor from their obligations.

Understanding the key differences between these two concepts is important when changing parties in legal agreements to ensure the intended legal implications.

Novation Meaning and Fundamentals

Novation means substituting an original party to an agreement with a new party. It discharges the existing contract between the original parties and creates a new contract with the new party.

In a novation, all parties involved must consent - the original parties to the contract agree to end obligations between them, and the new party agrees to take on those obligations. This releases the original obligor from the agreement and binds the new party.

For example, if party A has a contract with party B but wants party C to take over party B's obligations, a novation would end the AB contract and create a new AC contract. Party B would be released from the agreement.

Understanding Assignment in Contracts

Assignment refers to transferring rights or obligations under a contract from one party (the assignor) to another (the assignee).

In an assignment, the original parties to the contract remain the same. Only the beneficiary of rights or the obligated party changes. The assignor still owes obligations to the counterparty under the original agreement.

For example, party A has a contract with party B. Party A assigns their rights to payments or other benefits under the contract to party C. Party B still owes obligations, but payments now go to party C instead of party A.

Key Difference Between Assignment and Novation

The main difference between novation and assignment is that novation substitutes one of the original contracting parties with a new party, discharging the existing contract and creating a new one. Assignment keeps the original parties intact but transfers rights or obligations to a third party.

In a novation, the original party is released from the contract. In an assignment, the assignor remains a party to the original agreement.

Understanding this fundamental difference is crucial when changing parties in legal agreements to achieve the intended legal implications. Parties should clearly specify whether they intend a novation or an assignment during the amendment process.

How is a novation with a new party different than an assignment?

A key difference between a novation and an assignment is that a novation transfers both the benefits and obligations of a contract to a new party, while an assignment only transfers the benefits.

In an assignment , one party transfers the rights or benefits of a contract to another party. For example, Company A has a contract with Company B. Company A can assign their rights and benefits under that contract to Company C. However, Company A's obligations under the contract remain unchanged - Company A is still responsible for fulfilling those obligations, even though Company C now has the rights and benefits.

A novation goes a step further by also transferring the obligations. Using the example above, if Company A wanted to transfer both their rights/benefits AND obligations under the contract to Company C, that would be considered a novation. Company C would then take Company A's place as a party to the contract, taking on all the associated rights, benefits, and obligations.

In summary:

• Assignment: Transfers only rights/benefits to new party. Original party retains obligations.
• Novation: Transfers both rights/benefits AND obligations to new party. New party replaces original party to contract.

So while an assignment shifts some contract elements to a new party, a novation essentially substitutes the new party into the contract altogether. This transfer of obligations is the key distinction between the two.

What is the difference between novation assignment and transfer?

The key differences between a novation, an assignment, and a transfer are:

• Creates a new contract between the parties
• Transfers both rights and obligations to a new party
• Requires consent of all parties involved
• Transfers only rights/benefits to another party
• Does not transfer obligations/burdens
• Only requires consent of the assigning party
• Refers broadly to conveying rights or property from one party to another
• Encompasses both novation and assignment
• Does not create new contractual relationships

In summary, a novation replaces one party with another in an existing contract through mutual consent. An assignment transfers just the rights/benefits to another party. And a transfer is an overarching term for conveying rights or obligations from one party to another.

What is a novation which changes the parties to the obligation?

A novation is a legal concept where the parties to a contract agree to substitute one party for another, discharge an existing obligation, and create a new contractual obligation. This effectively changes the parties to the original obligation or contract.

There are a few key things that constitute a novation:

There must be a previous valid obligation between the parties that they want to change by bringing in a new party. This can be an existing contract.

All parties involved - the old debtor, the creditor, and the new debtor - must agree to the novation. This agreement can be oral or written.

The previous obligation is discharged. The new debtor takes on a new obligation to the creditor. Essentially, the new debtor steps into the shoes of the old debtor.

A new contract is formed between the creditor and the new debtor containing the new rights and obligations. This new contract discharges the old contract.

Some examples where novation is used:

Company A owes Company B money. Company C agrees to take on Company A's debt. Company B agrees to discharge Company A and instead hold Company C liable for the debt. This substitutes Company C for Company A in the obligation.

A tenant wants to leave before their lease term is up. The landlord, tenant and new tenant agree that the new tenant will take over the remaining lease obligations. This substitutes the new tenant into the lease contract, discharging the old tenant.

So in summary, a novation changes the parties to an obligation by substituting a new party and discharging the old party from their duties or obligations under the initial contract or agreement. All involved parties must consent.

Can obligations be transferred or assigned to another party if so then how?

Obligations under a contract can be transferred or assigned to another party through a process called novation or assignment.

A novation involves the substitution of a new contract between the same parties or between different parties. This substitutes the original rights and duties under the old contract with the rights and duties under the new contract.

For example, if party A and B have a contract, they can mutually agree with party C to novate the contract and substitute party C for party B. This transfers all rights and obligations from party B to party C.

The key requirements for novation are:

• Consent of all parties involved – the existing parties to the original contract and the new party
• Extinguishing the rights and duties under the old contract
• Creating new rights and duties under the new contract

An assignment involves transferring the rights/benefits under a contract from one party to another. However, the obligations remain with the original contracting party.

For example, party A assigns their rights and benefits under their contract with party B to party C. Party C can now enforce the rights that originally belonged to party A. However, the obligations still remain with party A.

The key requirements for a valid assignment are:

• The subject matter must be assignable
• Consent may be required from the other contracting party
• There must be absolute assignment of rights

So in summary, novation transfers both rights and obligations to a new party, while assignment only transfers rights.

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Deciding between novation and assignment.

Novation and assignment are two legal mechanisms for changing the parties in a contract. Understanding when to use each can help streamline your legal obligations.

How to Novate a Contract

Novation allows you to bring in a new party to a contract and end the relationship with the existing party. For example:

• Company A has a contract with Company B
• Company A wants to replace Company B with Company C in the contract
• Company A, B, and C sign a novation agreement
• This agreement ends Company A and B's contract and creates a new one between Company A and C

Key things to know about novation:

• Requires consent of all parties
• Discharges original contract obligations
• Creates new contract with new terms

So if you need to completely replace one of the parties, novation may be the best approach.

Assigning Obligations Without Changing Parties

Assignment transfers rights or obligations from one party to another without changing the original contractual relationship. For example:

• Company X has a contract with Company Y
• Company X assigns certain rights or duties under the contract to Company Z
• Company X and Y's original contract remains intact

With assignment:

• Original parties remain the same
• Only transfers specific rights/obligations
• Requires consent for total transfer of contract

So if you just need to transfer particular rights or duties, assignment may suffice without completely rewriting the contract.

Identifying Implied Novation

Sometimes a new contract can implicitly replace an earlier contract - this is an implied novation. Courts may rule a novation has occurred even without a formal agreement if the parties' conduct demonstrates intent. For example:

• Company A defaults on contract with Company B
• The parties enter a settlement agreement with new terms
• They act according to the new terms
• A court may decide this created an implied novation

So understand that entering new contracts can potentially impact previous ones. Seek legal advice to avoid unintended novations.

Executing a Novation Agreement

Executing a novation agreement formally transfers the rights and obligations under a contract from one party to another. There are several key steps involved:

Drafting a Novation Agreement

A novation agreement should clearly identify the original parties to the contract, the party transferring rights/obligations (the assignor), the party assuming rights/obligations (the assignee), and the consent of all parties. Key provisions include:

• Identifying information of original contract
• Clear statement of assignor's intent to novate
• Assignee's acceptance of rights and obligations
• Original parties' consent
• Signatures of all parties

Proper drafting ensures all parties understand the changes in legal relationships.

Understanding Consent in Novation

For a novation to be legally valid, all parties to the original contract must consent:

• The assignor must consent to be released from the contract
• The assignee must consent to assume the rights and obligations
• The other original contracting party must consent to the substitution of parties

Unanimous consent is essential. If any party objects, the novation is not valid.

Incorporating a Novation Clause in Contracts

Parties can include a novation clause permitting novation under specified conditions, without needing further consent. This clause defines:

• Conditions allowing novation
• Notice procedures
• Effective date

With a novation clause, parties agree in advance to potential future reassignments of contract rights/duties. This streamlines the novation process.

In summary, executing a valid novation requires proper drafting of terms, unanimous consent, and may be simplified by a novation clause. These steps formally transfer contractual rights and duties between parties.

Navigating Novation and Assignment Challenges

Novation and assignment of contracts can present legal and operational challenges. Here are some common issues and strategies to address them:

Securing Consent for Novation or Assignment

• Identify all parties that need to consent and determine process for securing approvals
• Highlight benefits to all parties to incentivize consent
• For novation, offer reasonable concessions to relieve existing party of obligations
• Consult legal counsel to ensure proper consent procedures are followed

Ensuring Smooth Transfer of Obligations

• Create transition plan outlining handoff of duties and assets
• Schedule meetings with involved parties to coordinate transfer
• Establish clear timelines for assuming obligations under the new contract
• Designate point persons to handle issues during transition period

Renegotiating Terms During Novation

• Assess existing terms to identify areas for improvement
• Consult legal counsel when drafting proposed amendments
• Present suggested changes collaboratively, focusing on mutual benefits
• Be prepared to offer reasonable concessions to facilitate agreement
• Allow reasonable time for review and negotiation of new terms

Following structured processes can facilitate successful novations and assignments. Engaging partners collaboratively and securing proper legal guidance are key.

Real-World Applications of Novation and Assignment

Novation and assignment are important legal concepts that allow for changing parties and obligations in contracts. Here are some real-world examples and case studies showing how they are applied in practice:

Deed of Novation: A Case Study

A common scenario for novation is when Company A has a contract with Supplier B, but Company A is acquired by Company C. The three parties may execute a Deed of Novation so that Company C replaces Company A as the counterparty in the supply contract with Supplier B.

For example, Tech Startup Z had a 5-year licensing agreement with Software Company Y to use their proprietary platform. When Tech Startup Z was acquired by Conglomerate X, a Deed of Novation was signed so that Conglomerate X replaced Tech Startup Z as the licensee in the software agreement with Company Y. The original contract terms remained unchanged.

This allowed for a smooth transition of contractual obligations to the new party without needing to create an entirely new contract. It provided continuity for Supplier B while releasing Tech Startup Z from the duties owed under the licensing agreement.

Applying the ISDA Novation Protocol

The ISDA Novation Protocol is a standardized procedure that allows multiple parties to concurrently novate credit derivative contracts.

For instance, when Bank A merges with Bank B, the two institutions need to transition the derivatives contracts they each held to the merged entity, Bank C. Rather than negotiating many bilateral novations between counterparties, they can follow the ISDA protocol which allows them to novate contracts en masse.

The ISDA protocol sets forth the terms and documentation all parties must sign and exchange to implement the novations. This greatly simplifies and streamlines the process of transferring large volumes of complex financial contracts to a successor party.

Legal Considerations in Novation and Assignment

Novation and assignment are common practices in contract law that allow for changing the parties involved in a contract or transferring obligations from one party to another. However, there are important legal considerations surrounding these practices that must be examined.

Novation in Law: An Overview

Novation refers to the act of replacing one party to an agreement with a new party. Essentially, novation discharges the contractual duties between the original parties and creates a new contract with the same terms between the remaining original party and a new party. There are a few key legal principles governing novation:

All parties to the original contract must consent to the novation. This includes the party being replaced, the remaining original party, and the new incoming party.

The new contract created by the novation stands independent from the original. The new party assumes the obligations going forward but is not liable for any previous breach by the party it replaced.

For a novation to be legally valid, there must be consideration furnished by all parties. Typically the new incoming party provides fresh consideration in the form of money, services, etc.

Over the years, courts have further refined novation law through key rulings. For example, novation does not necessarily have to be expressly stated, but can be implied based on the conduct of the parties. Overall, meeting the legal requirements for valid novation ensures smooth transitions between contracts.

Understanding Subpart 42.12 - Novation and Change-of-Name Agreements

For government contracts, novation and change-of-name agreements have specific regulations under Subpart 42.12. Some key requirements under these rules include:

The contractor must submit a written request to the government contracting officer to recognize a successor regarding a name change or novation.

For a novation, the proposed new party must submit all the required documentation, like the proposed novation agreement and evidence of disposition of assets.

The contracting officer must determine if recognizing a successor to a contract is in the government's interest and if the proposed new party can fulfill the contract.

All parties must execute a legal novation agreement which is then recognized by the government. The new party formally assumes all obligations under the contract.

Adhering to Subpart 42.12 ensures proper novation protocol and protects the government's interests when parties change in their contracts. Following the guidelines facilitates swift approval of the agreement.

Overall, understanding the legal principles around novation and assignment enables smooth changing of parties in contracts. Both commercial and government transactions must meet key regulations for valid transfers of obligations.

Conclusion: Mastering Novation and Assignment

Summarizing the decision criteria for novation vs assignment.

When deciding between using novation or assignment, key considerations include:

Consent requirements : Novation requires consent of all three parties, while assignment only requires consent of the assignor and assignee.

Transfer of rights vs obligations : Assignment transfers rights under a contract to a new party. Novation transfers both rights and obligations to a new party.

Formality : Novation often requires more formal documentation than assignment.

Credit risk : Novation transfers credit risk to the new party. Assignment does not.

Best Practices for Novation and Assignment Processes

To ensure smooth novation and assignment processes:

Obtain proper consents from all parties as needed.

Execute formal documentation like a Deed of Novation or Assignment Agreement.

Notify relevant parties of the transfer once completed.

Formalize transfer timing and effective dates.

Overcoming Common Novation and Assignment Hurdles

Common challenges can be addressed by:

Allowing reasonable time for consents to be obtained.

Having templates ready for any required documentation.

Closely reviewing contract terms around amendments, transfers, assignments etc.

Maintaining open communication with all parties.

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Assignment and Novation: Spot the Difference 12 November 2020

The english technology and construction court has found that the assignment of a sub-contract from a main contractor to an employer upon termination of an epc contract will, in the absence of express intention to the contrary, transfer both accrued and future contractual benefits..

In doing so, Mrs Justice O’Farrell has emphasised established principles on assignment and novation, and the clear conceptual distinction between them. While this decision affirms existing authority, it also highlights the inherent risks for construction contractors in step-in assignment arrangements.

"This decision shows the court’s desire to give effect to clear contractual provisions, particularly in complex construction contracts, even where doing so puts a party in a difficult position."

This preliminary issues judgment in the matter of Energy Works (Hull) Ltd v MW High Tech Projects UK Ltd & Others¹ , is the latest in a long series of decisions surrounding the Energy Works plant, a fluidised bed gasification energy-from-waste power plant in Hull². The defendant, MW High Tech Projects UK Ltd (“MW”), was engaged as the main contractor by the claimant and employer, Energy Works (Hull) Ltd (“EWHL”), under an EPC contract entered into in November 2015. Through a sub-contract, MW engaged Outotec (USA) Inc (“Outotec”) to supply key elements for the construction of the plant.

By March 2019, issues had arisen with the project. EWHL terminated the main contract for contractor default and, pursuant to a term in the EPC contract, asked MW to assign to it MW’s sub-contract with Outotec. The sub-contract permitted assignment, but MW and EWHL were unable to agree a deed of assignment. Ultimately, MW wrote to EWHL and Outotec, notifying them both that it was assigning the sub-contract to EWHL. EWHL subsequently brought £133m proceedings against MW, seeking compensation for the cost of defects and delay in completion of the works. The defendant disputed the grounds of the termination, denied EWHL’s claims, and sought to pass on any liability to Outotec through an additional claim under the sub-contract. Outotec disputed MW’s entitlement to bring the additional claim on the grounds that MW no longer had any rights under the sub-contract, because those rights had been assigned to EWHL.

The parties accepted that a valid transfer in respect of the sub-contract had taken place. However, MW maintained that the assignment only transferred future rights under the sub-contract and that all accrued rights – which would include the right to sue Outotec for any failure to perform in accordance with the sub-contract occurring prior to the assignment – remained with MW. In the alternative, MW argued that the transfer had been intended as a novation such that all rights and liabilities had been transferred. As a secondary point, MW also claimed eligibility for a contribution from Outotec under the Civil Liability (Contribution) Act 1978 for their alleged partial liability³.

An assignment is a transfer of a right from one party to another. Usually this is the transfer by one party of its rights and remedies, under a contract with a counterparty, to a third party. However, importantly, the assignor remains liable for any obligations it owes under the contract. As an example, Party A can assign to Party C its right to receive goods under a contract with Party B, but it will remain liable to pay Party B for those goods. Section 136 of the Law of Property Act 1926 requires a valid statutory assignment to be absolute, in writing, and on notice to the contractual counterparty.

Key contacts

Rebecca Williams

Partner London

Mark McAllister-Jones

Counsel London

"In the absence of any clear contrary intention, reference to assignment of the contract by parties is understood to mean assignment of the benefit, that is, accrued and future rights."

In this case, the precise scope of the transferred rights and the purported assignment of contractual obligations were in issue. Mrs Justice O’Farrell looked to the House of Lords’ decision in Linden Gardens⁴ to set out three relevant principles on assignment:

• Subject to any express contractual restrictions, a party to a contract can assign the benefit of a contract, but not the burden, without the consent of the other party to the contract;
• In the absence of any clear contrary intention, reference to assignment of the contract by parties is understood to mean assignment of the benefit, that is, accrued and future rights; and
• It is possible to assign only future rights under a contract (i.e. so that the assignor retains any rights which have already accrued at the date of the assignment), but clear words are needed to give effect to such an intention.

Hence, in relation to MW’s first argument, it is theoretically possible to separate future and accrued rights for assignment, but this can only be achieved through “careful and intricate drafting, spelling out the parties’ intentions”. The judge held that, since such wording was absent here, MW had transferred all its rights, both accrued and future, to EWHL, including its right to sue Outotec.

Whereas assignment only transfers a party’s rights under a contract, novation transfers both a party’s rights and its obligations . Strictly speaking, the original contract is extinguished and a new one formed between the incoming party and the remaining party to the original contract. This new contract has the same terms as the original, unless expressly agreed otherwise by the parties.

Another key difference from assignment is that novation requires the consent of all parties involved, i.e. the transferring party, the counterparty, and the incoming party. With assignment, the transferring party is only required to notify its counterparty of the assignment. Consent to a novation can be given when the original contract is first entered into. However, when giving consent to a future novation, the parties must be clear what the terms of the new contract will be.

"Mrs Justice O’Farrell stressed that “it is a matter for the parties to determine the basis on which they allocate risk within the contractual matrix.”"

A novation need not be in writing. However, the desire to show that all parties have given the required consent, the use of deeds of novation to avoid questions of consideration, and the use of novation to transfer ‘key’ contracts, particularly in asset purchase transactions, means that they often do take written form. A properly drafted novation agreement will usually make clear whether the outgoing party remains responsible for liabilities accrued prior to the transfer, or whether these become the incoming party’s problem.

As with any contractual agreement, the words used by the parties are key. Mrs Justice O’Farrell found that the use of the words “assign the sub-contract” were a strong indication that in this case the transfer was intended to be an assignment, and not a novation.

This decision reaffirms the established principles of assignment and novation and the distinction between them. It also shows the court’s desire to give effect to clear contractual provisions, particularly in complex construction contracts, even where doing so puts a party in a difficult position. Here, it was found that MW had transferred away its right to pursue Outotec for damages under the sub-contract, but MW remained liable to EWHL under the EPC contract. As a result, EWHL had the right to pursue either or both of MW and Outotec for losses arising from defects in the Outotec equipment, but where it chose to pursue only MW, MW had no contractual means of recovering from Outotec any sums it had to pay to EWHL. Mrs Justice O’Farrell stressed that “it is a matter for the parties to determine the basis on which they allocate risk within the contractual matrix.” A contractor in MW’s position can still seek from a sub-contractor a contribution in respect of its liability to the employer under the Civil Liability (Contribution) Act 1978 (as the judge confirmed MW was entitled to do in this case). However, the wording of the Act is very specific, and it may not always be possible to pass down a contractual chain all, or any, of a party’s liability.

Commercially, contractors often assume some risk of liability to the employer without the prospect of recovery from a sub-contractor, such as where the sub-contractor becomes insolvent, or where the sub-contract for some reason cannot be negotiated and agreed on back-to-back terms with the EPC contract. However, contractors need to consider carefully the ramifications of provisions allowing the transfer of sub-contracts to parties further up a contractual chain and take steps to ensure such provisions reflect any agreement as to the allocation of risk on a project.

This article was authored by London Dispute Resolution Co-Head and Partner Rebecca Williams , Senior Associate Mark McAllister-Jones and Gerard Rhodes , a trainee solicitor in the London office.

[1] [2020] EWHC 2537 (TCC)

[2] See, for example, the decisions in Premier Engineering (Lincoln) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 2484, reported in our article here , Engie Fabricom (UK) Ltd v MW High Tech Projects UK Ltd [2020] EWHC 1626 (TCC) and C Spencer Limited v MW High Tech Projects UK Limited [2020] EWCA Civ 331, reported in our article here .

[3] The Civil Liability (Contribution) Act 1978 allows that “ any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage whether jointly with him or otherwise .”

[4] Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd [1994] 1 AC 85

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What’s the difference between a sublet and an assignment?

With both a sublet and a lease assignment, the departing tenant remains responsible for the rent unless a landlord explicitly releases you. 

When Ismail Mustafa, a tenant in Dumbo, wanted to break his lease recently, the landlord gave him three options: He could arrange a sublet, transfer the lease to someone else, or end the lease by paying two months of rent upfront.

There’s obviously a financial cost to paying two months rent as a penalty for breaking your lease but it is also the most clear-cut break with your landlord. If you're considering the same options as Mustafa, it's important to know the difference between transferring your lease to someone else (also known as an assignment) and subletting. Neither are without risk.

"The bottom line is—none of the options is perfect—each has advantages and disadvantages," says  attorney Steven Kirkpatrick, a partner at the law firm  Romer Debbas.

It's worth pointing out that a fourth option might be  offered to you: To move out and pay rent until the landlord finds a tenant. This is highly "problematic," says  Catherine Grad, a tenant attorney with her own practice.  "You no longer have control over the process and you are still on the hook for the rent and you’ve given the power to someone who’s incentive is less than yours." 

Subletting vs. assignment

When you sublet your place it's typically because you intend to return to the apartment. A sublet will usually end a week—but it could be just a day—before the actual end of your original lease.

Subletting for the entire length of the lease is an assignment. An assignment allows you to hand off the rental to a new tenant for the rest of the lease term. This is what Mustafa ended up doing.  What's important is that either way—with both a sublet and an assignment—you are giving up your rights to the rental  but in both scenarios you are often still liable if there is damage to the apartment or the next tenant fails to pay. The risks are "tremendous," Grad says. 

When you assign a lease, the person you are assigning to would pay the landlord directly and deal with the landlord for repairs. 

If you are subletting you stand in the shoes of the landlord. The subtenant pays you the rent and you then pay the landlord. "If there are problems in the apartment, it is your duty to get it fixed," Grad says. This is the case, even if you are not authorized to make the repairs.  So while a sublet and an assignment are technically different, in terms of the risk for the departing tenant, Grad  says,  "it is the same." 

"The fact that you assign your rights does not eliminate your obligation to pay," Kirkpatrick  says.

The only situation in which you wouldn't be responsible for the apartment in any way is if you were released by the landlord from your original lease in writing. In practical terms, Grad says, "y ou will never get that with a sublease but might get it for an assignment. The landlord has no incentive to give that to you. Why not have two people on the hook—both you and assignee?" she asks.

A payment or additional security might be the incentive a landlord needs to release you. Security deposits are capped at one months rent making this type of payment "problematic," says Kirkpatrick but he adds there might be ways to structure it as a quid pro quo to release you of liability.  

Negotiations around lease breaks

A landlord cannot unreasonably deny your request to sublet or assign a lease in a residential situation.  If your landlord isn’t responding to your request to assign the lease, that silence becomes default consent within 30 days of you alerting them or of them receiving any additional information about the arrangement. If a landlord's refusal to assign is unreasonable, that terminates your lease.

If the refusal is unreasonable for a sublet, you aren't released from the lease but you are able to sublet the apartment and can fight it out in court. 

Grad says seeking to sublet or to assign your lease often leads to discussions about lease termination. Landlords know they cannot unreasonably deny your request but they also entered an agreement with you and want you to pay up. Yes, the  landlord has a duty to mitigate—which means they must do all they can to find a replacement tenant if you want to break your lease—but as Grad points out, this benefit isn't a given. 

"You have to fight for it—that's the nature of legal rights. It  doesn’t mean you have a right to break your lease, it just gives you a defense when you get sued for all the rent," she says. 

Insurance considerations

Without release from your own lease you will want to set up a separate agreement with the incoming tenant. Kirkpatrick advises having an indemnification agreement although points out that for practical purposes if the person stops paying the rent, there are no guarantees they will still be able to pay you. "If it were me, I’d want a guarantor," Kirkpatrick says. 

To protect yourself, run a credit report on a prospective subtenant or assignee. Phil Horigan, founder of  Leasebreak,  a website where you can find renters to take over an unwanted lease tells Brick, "in most cases I have heard where a tenant has gotten burned by a sublet, the tenant did not run credit."

You also need to make sure the subtenant or assignee has apartment insurance and that you too have apartment insurance, Grad says. If your landlord has not released you from the lease you remain liable if the tenant, for example, floods the apartment below or there's a fire in the place. 

You also want your tenant to know you are not covering their contents or liability. Jeffrey Schneider, president of Gotham Brokerage (a Brick Underground sponsor) says, "there are various ways to cover this, depending on whether you are an owner or former tenant."

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Emily Myers

Emily Myers is a real estate writer and podcast host. As the former host of the Brick Underground podcast,  she earned four silver awards from the National Association of Real Estate Editors. Emily studied journalism at the University of the Arts, London, earned an MA Honors degree in English Literature from the University of Edinburgh and lived for a decade in California.

Reassignment vs Transfer - What's the difference?

As nouns the difference between reassignment and transfer, as a verb transfer is, reassignment, derived terms, usage notes, related terms.

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