- USPTO’s New Assignment Center
The United States Patent and Trademark Office (USPTO) has announced the retirement of its Electronic Patent Assignment System (EPAS) and Electronic Trademark Assignment System (ETAS) and the launch of its new Assignment Center . According to the USPTO’s alert, this system will provide one central streamlined location for submitting and tracking all patent and trademark assignment submissions, will give users the most efficient and up-to-date digital tools, and will offer step-by-step guidance and easy-to-use editing capabilities.
How-to guides on using Assignment Center for patents and trademarks , as well as training videos on each part of the process, are available to help ensure a smooth transition to the new system. You can assess the new Assignment Center and helpful resources here .
[ View source .]
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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.
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How far can cities go to clear homeless camps? The U.S. Supreme Court will decide
A man named Frank sits in his tent with a river view in Portland, Ore., in 2021. A lawsuit originally filed in 2018 on behalf of homeless people in the Oregon city of Grants Pass is set to go before the U.S. Supreme Court in April. Paula Bronstein/AP hide caption
A man named Frank sits in his tent with a river view in Portland, Ore., in 2021. A lawsuit originally filed in 2018 on behalf of homeless people in the Oregon city of Grants Pass is set to go before the U.S. Supreme Court in April.
In April, the U.S. Supreme Court will hear a major case that could reshape how cities manage homelessness. The legal issue is whether they can fine or arrest people for sleeping outside if there's no shelter available. The 9th U.S. Circuit Court of Appeals has deemed this cruel and unusual punishment, and this case is a pivotal challenge to that ruling.
The high court declined to take up a similar case in 2019. But since then, homelessness rates have climbed relentlessly. Street encampments have grown larger and have expanded to new places, igniting intense backlash from residents and businesses. Homelessness and the lack of affordable housing that's helping to drive it have become key issues for many voters.
The case, Grants Pass v. Johnson , could have dramatic implications for the record number of people living in tents and cars across the United States.
An Oregon town banned camping and the use of sleeping bags and stoves on public property
In the small city of Grants Pass, Ore. , homeless people say the city broke the law when it aggressively tried to push them out over the past decade. To discourage people from sleeping in public spaces, the city banned the use of stoves and sleeping bags or other bedding. But during several years when she had lost housing, Helen Cruz says she needed to live in city parks because they're close to the jobs she had cleaning houses.
"We're not out there because we want to be," she says. "We don't have a choice. There's no place to go."
Grants Pass has no homeless shelter that's open to everyone. A religious mission takes in a few who agree to attend services. That left Cruz racking up thousands of dollars in fines, which she remains unable to pay.
"And I keep getting mail from Josephine County court saying, 'You owe this. If you don't pay this, it's going to collections,'" she says, "which has destroyed my credit."
Charges dropped against Ohio pastor who housed homeless people at his church
A lawsuit originally filed in 2018 on behalf of homeless people in Grants Pass said the situation there was part of a larger crisis, as homelessness rates around the U.S. were high and growing. It accused the city of trying to "punish people based on their status of being involuntarily homeless." The 9th Circuit agreed, saying the city could not ban people from sleeping outside with "rudimentary protection from the elements" when there was nowhere else for them to go.
The same appeals court also sided with homeless people in a landmark 2018 case out of Boise, Idaho, which the Supreme Court later declined to take up.
Critics say the Grants Pass ruling is a major expansion over the Boise one, since it forbids not just criminal penalties but civil ones. Advocates for homeless people don't see much difference, since some in Grants Pass who couldn't pay their fines were eventually jailed.
Grants Pass petitioned the Supreme Court. And its appeal has drawn support from dozens of local and state officials across the West and elsewhere who urged the justices to take this case. Among those filing such friend-of-the-court briefs are Republican -led states like Idaho, Montana and Nebraska and Democratic-led cities like Los Angeles and San Francisco, plus a separate brief from California Gov. Gavin Newsom .
Officials say the law has paralyzed their efforts to manage a public safety crisis
States and cities contend these rulings have contributed to the growth of tent encampments.
"These decisions are legally wrong and have tied the hands of local governments as they work to address the urgent homelessness crisis," Theane Evangelis, the attorney representing Grants Pass , said in a statement. "The tragedy is that these decisions are actually harming the very people they purport to protect."
Evangelis and others say sprawling tent camps pose a threat to public health and safety. Those living in them often face theft or assault and are at risk of being hit by passing vehicles. And they note that encampments have led to fires, disease, environmental hazards and high numbers of people overdosing on drugs and dying on public streets.
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"It's just gone too far," California Gov. Gavin Newsom said last year at a Politico event in Sacramento. "People's lives are at risk. It's unacceptable what's happening on the streets and sidewalks. Compassion is not stepping over people on the streets."
Critics also say the 9th Circuit's rulings are ambiguous and have been interpreted too broadly, making them unworkable in practice.
"We need to have clarity," says Seattle City Attorney Ann Davison, who wrote a legal brief on behalf of more than a dozen other cities plus the National League of Cities.
For example, what exactly constitutes adequate shelter? And what about when a bed is open, but someone refuses to go? Local officials say that this happens a lot, and some acknowledge that people might have good reasons to not want to go to a shelter. Yet Davison says court rulings essentially require cities to build enough shelter for every person without housing, something many places can't possibly afford.
They also argue that homelessness is a complex problem that requires balancing competing interests, something local officials are better equipped to do than the courts.
"We are trying to show there's respect for the public areas that we all need to have," Davison says. "And we care for people, and we're engaging and being involved in the long-term solution for them."
Advocates say punishing homeless people won't solve the problem
Attorneys and advocates for the homeless plaintiffs argue that the 9th Circuit rulings are far narrower and less restrictive than cities claim.
"It's interesting to me that the people in power have thrown up their hands and said, 'There's nothing we can do, and the only solution we can think of is to arrest people,'" says Jesse Rabinowitz of the National Homelessness Law Center. "That's simply not true."
He and others say the rulings do allow cities to regulate encampments. They can limit the time and place for them, ban the use of tents, even clear them out. And plenty of cities do that, though they often face lawsuits over the details of what's allowed.
Housing is now unaffordable for a record half of all U.S. renters, study finds
Grants Pass did what's not allowed, which is ban camps everywhere all the time, says Ed Johnson of the Oregon Law Center, which represents those suing the city. He says that would basically make it illegal for people to exist.
"It's sort of the bare minimum in what a just society should expect, is that you're not going to punish someone for something they have no ability to control," he says.
The reason they can't control being homeless, Johnson says, is because Grants Pass — like so many cities around the U.S. — has a severe housing shortage and unaffordable rents. He says that cities are blaming the courts for decades of failed housing policies and that fining and jailing people only makes the problem worse.
"When we criminalize people, we know it impacts their ability to get a job," says Ann Oliva, CEO of the National Alliance to End Homelessness. "It impacts their ability to get housing in the long run if they have a criminal record."
Some cities that side with Grants Pass say they have invested heavily to create more affordable housing, even as homelessness rates keep going up. That's a long-term challenge they'll still face, whatever the Supreme Court decides.
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Search Shelter Legal
This section looks at tenants' rights to pass on (assign) their public and private sector tenancies. The way in which a tenancy is assigned will depend on what type of tenancy it is.
What is assignation?
The assignation of a tenancy is the transfer of the assignor's legal interest in the lease to another person, known as the assignee. Both landlords and tenants can make assignations.
Right to assign
This section discusses the common law, where a tenant has an implied right to assign unfurnished property.
How to assign
There are general points that must be considered before assigning a tenancy.
Assignation and the family home
Provision for the compulsory assignation of the tenancy from one spouse or civil partner to the other by way of a court order.
Scottish secure tenancies
The Housing (Scotland) Act 2001 sets out the arrangements for assignation where someone is a Scottish secure tenant.
Private residential tenancies
Tenants wishing to assign a private residential tenancy must have their landlord’s consent.
The Housing (Scotland) Act 1988 sets out the arrangements for assignation where someone is an assured tenant.
The Rent (Scotland) Act 1984 sets out the arrangements for assignation where someone is a protected tenant.
Common law tenancies
At common law, a tenant has an implied right to assign unfurnished property.
Liability for rent arrears
If someone has become a tenant as a result of assignation, s/he will be liable for existing rent arrears in addition to any arrears s/he accrues.
Last updated: 29 December 2014
- Legislation.gov.uk - Housing (Scotland) Act 1988
- Legislation.gov.uk - Housing (Scotland) Act 2001
- Legislation.gov.uk - Requirements of Writing (Scotland) Act 1995
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- Staying in the home when a joint tenant leaves
Staying in the home when a joint tenant leaves
Posted on 11/08/21 in Housing Matters
In this article, Charlie Howard, a senior adviser at Shelter, explains the rights and options of joint tenants to stay in their home when a joint tenant leaves, including solutions involving the courts.
Assigning the tenancy
When a joint tenant leaves, they might want to end all ties with their tenancy so they are not chased for rent or other costs in the future. Assignment is a way for a tenant to transfer their tenancy to someone else. It might be possible for the departing tenant to assign the tenancy to the remaining tenant. This depends on the type of tenancy agreement and terms in the agreement.
Joint tenancies can be assigned but are subject to the statutory rules for the tenancy type.
If the tenancy is a secure , flexible , or introductory , assignment is not available. For assured and assured shorthold tenancies, the tenants must check their tenancy agreement. If the agreement says nothing about assignment, then the landlord must consent and can withhold their consent for any reason.
Assignment is allowed if the agreement allows it without consent, but this is rare. If the agreement states that the tenant can assign with the landlord’s consent, the consent should not be unreasonably withheld.
If the agreement forbids assignment or if the tenant assigns without the landlord’s consent where it is required, the remaining tenant is in a vulnerable position as the tenancy has been breached and the landlord could issue possession proceedings.
For regulated tenancies in general, the right to assign is governed by the terms in the tenancy and requires the landlord’s consent. For a protected shorthold , it is not possible to assign the tenancy.
For an assignment to be valid, it must be made by deed. A deed is a written document that is signed as a deed and witnessed. An attempt to assign without satisfying all the formalities of a deed could be effective as an equitable assignment. The tenants should seek specialist legal advice if they wish to assign by deed.
Signing a new agreement
The remaining tenant could agree with the landlord that the current tenancy is terminated, to be replaced with a new agreement with the remaining tenant. If the tenancy is still within the fixed term, it is likely that the departing tenant will have to consent to the termination of the tenancy.
It is vital the tenant ensures that the landlord will offer another tenancy, signing the contract before terminating the current tenancy.
Finding a replacement tenant
If the landlord and all tenants agree, a tenant could be replaced on the tenancy agreement. This could happen where one joint tenant wants to leave, and the landlord agrees they can find someone to take over their room.
This creates a new contract, and the original joint tenancy is surrendered by operation of law. Without agreement of all parties, a replacement tenant will not automatically become a joint tenant. They could instead be a subtenant or licensee of the existing tenants. The outgoing tenant remains liable for all the obligations under the agreement until the joint tenancy is ended.
A landlord or agent could charge a fee for a replacement tenant. The fee is capped under the Tenant Fees Act 2019 at £50, unless the landlord or agent’s reasonable costs are greater.
Solutions involving the courts
Matrimonial law, family law and the Children Act 1989 give the courts powers to transfer one joint tenant’s interest to the other. The remaining tenant can make an urgent application to court for an injunction to stop a joint tenant from serving notice to quit before the transfer of tenancy can take place.
The court has the power to make an occupation order in favour of one joint tenant, excluding another joint tenant from the property on a short-term basis while longer term housing options are explored.
If the tenancy is periodic, the departing tenant could end the tenancy without the agreement of other tenants. In some limited circumstances, a court could make an injunction order to prevent a notice being served.
Where an application is made for a tenancy transfer under the Family Law Act 1996, it may be possible for an order to be obtained to prevent the departing from serving a notice to quit to end the tenancy. The same approach could be taken when an order has been made under the Children Act 1989, for couples with children. However, this is a temporary solution, used for a short time to protect the tenancy while longer-term options are explored. The departing tenant and the landlord could be held in contempt of court if they served a notice in breach of the order, but the tenancy still ends.
A family law solicitor can advise about applying for an injunction.
The court can make an occupation order under the Family Law Act 1996 setting out who can live at the property or ordering one of the joint tenant cohabitants to leave. Occupation orders are available to joint tenants, joint licensees and their partners.
Occupation orders are orders made by the courts to enforce, declare, or restrict rights to occupy the home. They are only a short-term solution and will not affect what happens to the property in the final settlement. Occupation orders can be granted under a number of different sections of the Family Law Act 1996. The tenant should seek specialist advice about which provisions apply to their situation.
In the case of domestic abuse, it is possible to get a court order banning the abuser from the property. This ideally needs legal advice and assistance, as it is a serious step. It is not a permanent solution and may also require an injunction to stop the termination of the joint tenancy.
Transfer of tenancy
A court can order that a tenancy is transferred from a joint tenancy into a sole tenancy.
Where the tenants are married, the court can order that the tenancy is assigned to the remaining tenant under the Matrimonial Causes Act 1973. This can happen in conjunction with divorce, judicial separation, dissolution of a civil partnership or nullity proceedings. The order can only be made where a tenancy can be assigned.
Where the tenants are not married but do have children under 18 (or where the tenants are married or in a civil partnership but are not divorcing), an application can be made to transfer the tenancy to one of the parents for the benefit of the children. This is under the Children Act 1989.
For tenants who are cohabiting (married or unmarried, with or without children), the tenant can apply for a transfer of tenancy through the court under the Family Law Act 1996.
A family law solicitor can advise on solutions involving the courts.
Shelter legal has a page on joint tenancies and a section on relationship breakdown .
In Housing Matters
Ending a joint tenancy when a tenant leaves
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Regulation of supported housing: next steps
Assign is the act of transferring rights , property , or other benefits to another party (the assignee ) from the party who holds such benefits under contract (the assignor). This concept is used in both contract and property law .
Under contract law, when one party assigns a contract , the assignment represents both: (1) an assignment of rights; and (2) a delegation of duties .
- For example, if A contracts with B to teach B guitar for $50, A can assign this contract to C.
- Here, A has both: (1) assigned A’s rights under the contract to the $50; and (2) delegated A’s duty to teach guitar, to C.
- In this example, A is both the “assignor” and the “delegee” who delegates 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.
Assigning 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, they cannot assign their future right to an assignee.
- That is, if A has not yet contracted with B to teach B guitar, A cannot assign their 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 them.
- 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.
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.
- Meaning 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. Novation requires an original obligee’s consent .
Under property law , assignment typically arises in landlord-tenant situations.
- For example, A might be renting from landlord B but wants another party (C) to take over the property.
- In this scenario, A might choose between assigning and subleasing the property to C.
- If assigning , A would give C the entire balance of the term , with no reversion to anyone; whereas if subleasing , A would give C the property for a limited period of the remaining term.
- Under assignment, C would have privity of estate with the landlord while under a sublease, C would not.
[Last updated in June of 2022 by the Wex Definitions Team ]
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Amazon driver fends off attack from drunk, naked NYC migrant — and ends up in cuffs
A Big Apple Amazon driver said he had to slam a naked and drunk migrant in the head with a snowball to keep the deranged asylum seeker from making off with his packages — only to find himself in handcuffs.
The migrant, identified by police sources as Yeison Sanchez, 26, was allegedly stumbling drunk and clutching a beer bottle when the Amazon driver said he caught him red-handed trying to make off with packages he was delivering in Clinton Hill around 4:45 p.m. on Sunday.
That’s when things got out of hand.
“I was unloading my stuff, and a guy – he was like a pervert, he had his penis out,” the driver, who asked that he only be identified as Abu, told The Post on Monday.
“He’s in the corner of the street j–king off and I told him, ‘Hey, what are you doing?’” Abu added. “And he went into my van where all my mail and everything was at, and I pushed him away, and he ran towards me like he was going to aggressively hit me.”
Abu said he picked up a piece of ice from the ground and chucked it at the rowdy flasher.
“I really had to protect myself,” said Abu, who said he couldn’t help but think of the recent unprovoked slashing of another Amazon worker in the Bronx.
“So what I did was I looked towards the floor and I saw a big snow pile,” he said. “I picked up a piece and I socked him with it and he went down on his butt.”
Abu said he spotted some cops nearby and ran to them for help — a no-brainer move that somehow backfried.
“[Sanchez] was telling [the cops] in Spanish that I punched him in the face,” Abu said. “I told them there’s cameras around, you can probably find something. They said there were no cameras. After a while it turned into a ‘He said, she said’ thing and that’s how it went.”
Sanchez – who lives at a shelter just blocks away from the scene on Hall Street – was charged with petit larceny and public lewdness, cops and sources said.
He was released without bail in court Monday.
Abu, who left the would-be thief with swelling and bruising on his face, was charged with third-degree assault and released on a desk appearance ticket, police said.
“He was trying to aggressively hurt me and I just protected myself and my property from my job,” he maintained on Monday. “That’s it. I ended up being taken in, and now I have an open case about this.
“It’s ridiculous because I asked the cops for help,” he added. “I ran to the cops and said, ‘Hey, can you please get this guy. I don’t want to hurt him. I already hit him with a snowball and he was pretty hurt.’”
He said he didn’t want to “do him damage” with his hands, which is why he sought help from the police.
“I didn’t want to lose my job. I did things the right way, by the books, and I wound up going to jail,” he railed.
When informed by The Post that Sanchez was a migrant, the Amazon worker said that the man “was given a chance by being let into this country, and he didn’t use it.”
Abu recalled that his own father, an illegal immigrant, was deported to his native Dominican Republic following a police investigation when his own car was broken into.
“My dad ended up passing away from being deported because things were bad over there,” Abu said. “That always stuck with me after that. I never wanted to tell the police anything, but this time I did, I tried to help myself, and it happened to me now.
“I’m lucky I’m not an immigrant because I’d probably have to go back to my own country,” he added. “That’s why I hate dealing with police, because it ends up biting me in the rear end.”
- assignments basic law
Assignments: The Basic Law
The assignment of a right or obligation is a common contractual event under the law and the right to assign (or prohibition against assignments) is found in the majority of agreements, leases and business structural documents created in the United States.
As with many terms commonly used, people are familiar with the term but often are not aware or fully aware of what the terms entail. The concept of assignment of rights and obligations is one of those simple concepts with wide ranging ramifications in the contractual and business context and the law imposes severe restrictions on the validity and effect of assignment in many instances. Clear contractual provisions concerning assignments and rights should be in every document and structure created and this article will outline why such drafting is essential for the creation of appropriate and effective contracts and structures.
The reader should first read the article on Limited Liability Entities in the United States and Contracts since the information in those articles will be assumed in this article.
Basic Definitions and Concepts:
An assignment is the transfer of rights held by one party called the “assignor” to another party called the “assignee.” The legal nature of the assignment and the contractual terms of the agreement between the parties determines some additional rights and liabilities that accompany the assignment. The assignment of rights under a contract usually completely transfers the rights to the assignee to receive the benefits accruing under the contract. Ordinarily, the term assignment is limited to the transfer of rights that are intangible, like contractual rights and rights connected with property. Merchants Service Co. v. Small Claims Court , 35 Cal. 2d 109, 113-114 (Cal. 1950).
An assignment will generally be permitted under the law unless there is an express prohibition against assignment in the underlying contract or lease. Where assignments are permitted, the assignor need not consult the other party to the contract but may merely assign the rights at that time. However, an assignment cannot have any adverse effect on the duties of the other party to the contract, nor can it diminish the chance of the other party receiving complete performance. The assignor normally remains liable unless there is an agreement to the contrary by the other party to the contract.
The effect of a valid assignment is to remove privity between the assignor and the obligor and create privity between the obligor and the assignee. Privity is usually defined as a direct and immediate contractual relationship. See Merchants case above.
Further, for the assignment to be effective in most jurisdictions, it must occur in the present. One does not normally assign a future right; the assignment vests immediate rights and obligations.
No specific language is required to create an assignment so long as the assignor makes clear his/her intent to assign identified contractual rights to the assignee. Since expensive litigation can erupt from ambiguous or vague language, obtaining the correct verbiage is vital. An agreement must manifest the intent to transfer rights and can either be oral or in writing and the rights assigned must be certain.
Note that an assignment of an interest is the transfer of some identifiable property, claim, or right from the assignor to the assignee. The assignment operates to transfer to the assignee all of the rights, title, or interest of the assignor in the thing assigned. A transfer of all rights, title, and interests conveys everything that the assignor owned in the thing assigned and the assignee stands in the shoes of the assignor. Knott v. McDonald’s Corp ., 985 F. Supp. 1222 (N.D. Cal. 1997)
The parties must intend to effectuate an assignment at the time of the transfer, although no particular language or procedure is necessary. As long ago as the case of National Reserve Co. v. Metropolitan Trust Co ., 17 Cal. 2d 827 (Cal. 1941), the court held that in determining what rights or interests pass under an assignment, the intention of the parties as manifested in the instrument is controlling.
The intent of the parties to an assignment is a question of fact to be derived not only from the instrument executed by the parties but also from the surrounding circumstances. When there is no writing to evidence the intention to transfer some identifiable property, claim, or right, it is necessary to scrutinize the surrounding circumstances and parties’ acts to ascertain their intentions. Strosberg v. Brauvin Realty Servs., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998)
The general rule applicable to assignments of choses in action is that an assignment, unless there is a contract to the contrary, carries with it all securities held by the assignor as collateral to the claim and all rights incidental thereto and vests in the assignee the equitable title to such collateral securities and incidental rights. An unqualified assignment of a contract or chose in action, however, with no indication of the intent of the parties, vests in the assignee the assigned contract or chose and all rights and remedies incidental thereto.
More examples: In Strosberg v. Brauvin Realty Servs ., 295 Ill. App. 3d 17 (Ill. App. Ct. 1st Dist. 1998), the court held that the assignee of a party to a subordination agreement is entitled to the benefits and is subject to the burdens of the agreement. In Florida E. C. R. Co. v. Eno , 99 Fla. 887 (Fla. 1930), the court held that the mere assignment of all sums due in and of itself creates no different or other liability of the owner to the assignee than that which existed from the owner to the assignor.
And note that even though an assignment vests in the assignee all rights, remedies, and contingent benefits which are incidental to the thing assigned, those which are personal to the assignor and for his sole benefit are not assigned. Rasp v. Hidden Valley Lake, Inc ., 519 N.E.2d 153, 158 (Ind. Ct. App. 1988). Thus, if the underlying agreement provides that a service can only be provided to X, X cannot assign that right to Y.
Novation Compared to Assignment:
Although the difference between a novation and an assignment may appear narrow, it is an essential one. “Novation is a act whereby one party transfers all its obligations and benefits under a contract to a third party.” In a novation, a third party successfully substitutes the original party as a party to the contract. “When a contract is novated, the other contracting party must be left in the same position he was in prior to the novation being made.”
A sublease is the transfer when a tenant retains some right of reentry onto the leased premises. However, if the tenant transfers the entire leasehold estate, retaining no right of reentry or other reversionary interest, then the transfer is an assignment. The assignor is normally also removed from liability to the landlord only if the landlord consents or allowed that right in the lease. In a sublease, the original tenant is not released from the obligations of the original lease.
An equitable assignment is one in which one has a future interest and is not valid at law but valid in a court of equity. In National Bank of Republic v. United Sec. Life Ins. & Trust Co. , 17 App. D.C. 112 (D.C. Cir. 1900), the court held that to constitute an equitable assignment of a chose in action, the following has to occur generally: anything said written or done, in pursuance of an agreement and for valuable consideration, or in consideration of an antecedent debt, to place a chose in action or fund out of the control of the owner, and appropriate it to or in favor of another person, amounts to an equitable assignment. Thus, an agreement, between a debtor and a creditor, that the debt shall be paid out of a specific fund going to the debtor may operate as an equitable assignment.
In Egyptian Navigation Co. v. Baker Invs. Corp. , 2008 U.S. Dist. LEXIS 30804 (S.D.N.Y. Apr. 14, 2008), the court stated that an equitable assignment occurs under English law when an assignor, with an intent to transfer his/her right to a chose in action, informs the assignee about the right so transferred.
An executory agreement or a declaration of trust are also equitable assignments if unenforceable as assignments by a court of law but enforceable by a court of equity exercising sound discretion according to the circumstances of the case. Since California combines courts of equity and courts of law, the same court would hear arguments as to whether an equitable assignment had occurred. Quite often, such relief is granted to avoid fraud or unjust enrichment.
Note that obtaining an assignment through fraudulent means invalidates the assignment. Fraud destroys the validity of everything into which it enters. It vitiates the most solemn contracts, documents, and even judgments. Walker v. Rich , 79 Cal. App. 139 (Cal. App. 1926). If an assignment is made with the fraudulent intent to delay, hinder, and defraud creditors, then it is void as fraudulent in fact. See our article on Transfers to Defraud Creditors .
But note that the motives that prompted an assignor to make the transfer will be considered as immaterial and will constitute no defense to an action by the assignee, if an assignment is considered as valid in all other respects.
Enforceability of Assignments:
Whether a right under a contract is capable of being transferred is determined by the law of the place where the contract was entered into. The validity and effect of an assignment is determined by the law of the place of assignment. The validity of an assignment of a contractual right is governed by the law of the state with the most significant relationship to the assignment and the parties.
In some jurisdictions, the traditional conflict of laws rules governing assignments has been rejected and the law of the place having the most significant contacts with the assignment applies. In Downs v. American Mut. Liability Ins. Co ., 14 N.Y.2d 266 (N.Y. 1964), a wife and her husband separated and the wife obtained a judgment of separation from the husband in New York. The judgment required the husband to pay a certain yearly sum to the wife. The husband assigned 50 percent of his future salary, wages, and earnings to the wife. The agreement authorized the employer to make such payments to the wife.
After the husband moved from New York, the wife learned that he was employed by an employer in Massachusetts. She sent the proper notice and demanded payment under the agreement. The employer refused and the wife brought an action for enforcement. The court observed that Massachusetts did not prohibit assignment of the husband’s wages. Moreover, Massachusetts law was not controlling because New York had the most significant relationship with the assignment. Therefore, the court ruled in favor of the wife.
Therefore, the validity of an assignment is determined by looking to the law of the forum with the most significant relationship to the assignment itself. To determine the applicable law of assignments, the court must look to the law of the state which is most significantly related to the principal issue before it.
Assignment of Contractual Rights:
Generally, the law allows the assignment of a contractual right unless the substitution of rights would materially change the duty of the obligor, materially increase the burden or risk imposed on the obligor by the contract, materially impair the chance of obtaining return performance, or materially reduce the value of the performance to the obligor. Restat 2d of Contracts, § 317(2)(a). This presumes that the underlying agreement is silent on the right to assign.
If the contract specifically precludes assignment, the contractual right is not assignable. Whether a contract is assignable is a matter of contractual intent and one must look to the language used by the parties to discern that intent.
In the absence of an express provision to the contrary, the rights and duties under a bilateral executory contract that does not involve personal skill, trust, or confidence may be assigned without the consent of the other party. But note that an assignment is invalid if it would materially alter the other party’s duties and responsibilities. Once an assignment is effective, the assignee stands in the shoes of the assignor and assumes all of assignor’s rights. Hence, after a valid assignment, the assignor’s right to performance is extinguished, transferred to assignee, and the assignee possesses the same rights, benefits, and remedies assignor once possessed. Robert Lamb Hart Planners & Architects v. Evergreen, Ltd. , 787 F. Supp. 753 (S.D. Ohio 1992).
On the other hand, an assignee’s right against the obligor is subject to “all of the limitations of the assignor’s right, all defenses thereto, and all set-offs and counterclaims which would have been available against the assignor had there been no assignment, provided that these defenses and set-offs are based on facts existing at the time of the assignment.” See Robert Lamb , case, above.
The power of the contract to restrict assignment is broad. Usually, contractual provisions that restrict assignment of the contract without the consent of the obligor are valid and enforceable, even when there is statutory authorization for the assignment. The restriction of the power to assign is often ineffective unless the restriction is expressly and precisely stated. Anti-assignment clauses are effective only if they contain clear, unambiguous language of prohibition. Anti-assignment clauses protect only the obligor and do not affect the transaction between the assignee and assignor.
Usually, a prohibition against the assignment of a contract does not prevent an assignment of the right to receive payments due, unless circumstances indicate the contrary. Moreover, the contracting parties cannot, by a mere non-assignment provision, prevent the effectual alienation of the right to money which becomes due under the contract.
A contract provision prohibiting or restricting an assignment may be waived, or a party may so act as to be estopped from objecting to the assignment, such as by effectively ratifying the assignment. The power to void an assignment made in violation of an anti-assignment clause may be waived either before or after the assignment. See our article on Contracts.
Noncompete Clauses and Assignments:
Of critical import to most buyers of businesses is the ability to ensure that key employees of the business being purchased cannot start a competing company. Some states strictly limit such clauses, some do allow them. California does restrict noncompete clauses, only allowing them under certain circumstances. A common question in those states that do allow them is whether such rights can be assigned to a new party, such as the buyer of the buyer.
A covenant not to compete, also called a non-competitive clause, is a formal agreement prohibiting one party from performing similar work or business within a designated area for a specified amount of time. This type of clause is generally included in contracts between employer and employee and contracts between buyer and seller of a business.
Many workers sign a covenant not to compete as part of the paperwork required for employment. It may be a separate document similar to a non-disclosure agreement, or buried within a number of other clauses in a contract. A covenant not to compete is generally legal and enforceable, although there are some exceptions and restrictions.
Whenever a company recruits skilled employees, it invests a significant amount of time and training. For example, it often takes years before a research chemist or a design engineer develops a workable knowledge of a company’s product line, including trade secrets and highly sensitive information. Once an employee gains this knowledge and experience, however, all sorts of things can happen. The employee could work for the company until retirement, accept a better offer from a competing company or start up his or her own business.
A covenant not to compete may cover a number of potential issues between employers and former employees. Many companies spend years developing a local base of customers or clients. It is important that this customer base not fall into the hands of local competitors. When an employee signs a covenant not to compete, he or she usually agrees not to use insider knowledge of the company’s customer base to disadvantage the company. The covenant not to compete often defines a broad geographical area considered off-limits to former employees, possibly tens or hundreds of miles.
Another area of concern covered by a covenant not to compete is a potential ‘brain drain’. Some high-level former employees may seek to recruit others from the same company to create new competition. Retention of employees, especially those with unique skills or proprietary knowledge, is vital for most companies, so a covenant not to compete may spell out definite restrictions on the hiring or recruiting of employees.
A covenant not to compete may also define a specific amount of time before a former employee can seek employment in a similar field. Many companies offer a substantial severance package to make sure former employees are financially solvent until the terms of the covenant not to compete have been met.
Because the use of a covenant not to compete can be controversial, a handful of states, including California, have largely banned this type of contractual language. The legal enforcement of these agreements falls on individual states, and many have sided with the employee during arbitration or litigation. A covenant not to compete must be reasonable and specific, with defined time periods and coverage areas. If the agreement gives the company too much power over former employees or is ambiguous, state courts may declare it to be overbroad and therefore unenforceable. In such case, the employee would be free to pursue any employment opportunity, including working for a direct competitor or starting up a new company of his or her own.
It has been held that an employee’s covenant not to compete is assignable where one business is transferred to another, that a merger does not constitute an assignment of a covenant not to compete, and that a covenant not to compete is enforceable by a successor to the employer where the assignment does not create an added burden of employment or other disadvantage to the employee. However, in some states such as Hawaii, it has also been held that a covenant not to compete is not assignable and under various statutes for various reasons that such covenants are not enforceable against an employee by a successor to the employer. Hawaii v. Gannett Pac. Corp. , 99 F. Supp. 2d 1241 (D. Haw. 1999)
It is vital to obtain the relevant law of the applicable state before drafting or attempting to enforce assignment rights in this particular area.
In the current business world of fast changing structures, agreements, employees and projects, the ability to assign rights and obligations is essential to allow flexibility and adjustment to new situations. Conversely, the ability to hold a contracting party into the deal may be essential for the future of a party. Thus, the law of assignments and the restriction on same is a critical aspect of every agreement and every structure. This basic provision is often glanced at by the contracting parties, or scribbled into the deal at the last minute but can easily become the most vital part of the transaction.
As an example, one client of ours came into the office outraged that his co venturer on a sizable exporting agreement, who had excellent connections in Brazil, had elected to pursue another venture instead and assigned the agreement to a party unknown to our client and without the business contacts our client considered vital. When we examined the handwritten agreement our client had drafted in a restaurant in Sao Paolo, we discovered there was no restriction on assignment whatsoever…our client had not even considered that right when drafting the agreement after a full day of work.
One choses who one does business with carefully…to ensure that one’s choice remains the party on the other side of the contract, one must master the ability to negotiate proper assignment provisions.
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Assignment of Rents – What, Why, and How?
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- November 29, 2023
These days, almost all commercial loans include an Assignment of Rents as part of the Deed of Trust or Mortgage. But what is an Assignment of Rents, why is this such an important tool, and how are they enforced?
An Assignment of Rents (“AOR”) is used to grant the lender on a transaction a security interest in existing and future leases, rents, issues, or profits generated by the secured property, including cash proceeds, in the event a borrower defaults on their loan. The lender can use the AOR to step in and directly collect rental payments made by the tenant. For an AOR to be effective, the lender’s interest must be perfected, which has a few fairly simple requirements. The AOR must be in writing, executed by the borrower, and recorded with the county where the property is located. Including an AOR in the recorded Deed of Trust or Mortgage is the easiest and most common way to ensure the AOR meets these requirements should it ever need to be utilized.
When a borrower defaults, lenders can take advantage of AORs as an alternative to foreclosure to recoup their investment. With a shorter timeline and significantly lower costs, it is certainly an attractive option for lenders looking to get defaulted borrowers back on track with payments, without the potential of having to take back a property and attempting to either manage it or sell it in hopes of getting your money back out of the property. AORs can be a quick and easy way for the lender to get profits generated by the property with the goal of bringing the borrower out of default. But lenders should carefully monitor how much is owed versus how much has been collected. If the AOR generates enough funds so that the borrower is no longer in default, the lender must stop collecting rents generated by the property.
Enforcement of an AOR can also incentivize borrowers to work with the lender to formulate a plan, as many borrowers rely on rental income to cover expenses related to the property or their businesses. Borrowers are generally more willing to come to the table and negotiate a mutual, amicable resolution with the lender in order to protect their own investment. A word of warning to lenders though: since rental income is frequently used to pay expenses on the property, such as the property manager, maintenance, taxes, and other expenses, the lender needs to ensure they do not unintentionally hurt the value of the property by letting these important expenses fall behind. This may hurt the lender’s investment as well, as the property value could suffer, liens could be placed on the property, or the property may fall into disrepair if not properly maintained. It is also important for lenders to be aware of the statutes surrounding the payment of these expenses when an AOR is being used, as some state’s statutes require the lender to pay certain property expenses out of the collected rents if requested by the borrower.
In addition to being shorter and cheaper than foreclosure, AORs can be much easier to enforce. In California, the enforcement of an AOR is governed by California Civil Code §2938. This statute specifies enforcement methods lenders can use and restrictions on use of these funds by the lender, among other things. Under CA Civil Code §2938(c), there are 4 ways to enforce an AOR:
- The appointment of a receiver;
- Obtaining possession of the rents, issues, profits;
- Delivery to tenant of a written demand for turnover of rents, issues, and profits in the correct form; or
- Delivery to assignor of a written demand for the rents, issues, or profits.
One or more of these methods can be used to enforce an AOR. First, a receiver can be appointed by the court, and granted specific powers related to the AOR such as managing the property and collecting rents. They can have additional powers though; it just depends on what the court orders. This is not the simplest or easiest option as it requires court involvement, but this is used to enforce an AOR, especially when borrowers or tenants are uncooperative. Next is obtaining possession of the rents, issues, profits, which is exactly as it seems; lenders can simply obtain actual possession of these and apply the funds to the loan under their AOR.
The third and fourth options each require delivery of a written demand to certain parties, directing them to pay rent to the lender instead of to the landlord. Once the demand is made, the tenant pays their rent directly to the lender, who then applies the funds to the defaulted loan. These are both great pre-litigation options, with advantages over the first two enforcement methods since actual possession can be difficult to obtain and courts move slowly with high costs to litigate. The written demands require a specific form to follow called the “Demand To Pay Rent to Party Other Than Landlord”, as found at CA Civil Code §2938(k). There are other notice requirements to be followed here, so it is essential to consult with an experienced attorney if you are considering either of these options. California Civil Code §2938 specifically provides that none of the four enforcement methods violate California’s One Action Rule nor the Anti-Deficiency Rule, so lenders can confidently enforce their AORs using the above methods with peace of mind that they are not violating other California laws.
Whether you are looking to originate a new loan, or you are facing a default by your borrower, understanding what an Assignment of Rents is and how it operates can be extremely beneficial. Enforcing an AOR can be an easier option than foreclosure and can help promote a good relationship with your borrower when handled correctly. If you have any questions about AORs, or need further details on how to enforce them, Geraci is here to help.
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- Legal Dictionary
Assignment is a legal definition that refers to the transfer of rights, property, or other benefits between two parties. The party allocating the rights is known as the “assignor”, while the one receiving them is called the “assignee”. The other original party to the contract is known as the “ obligor ”.
A burden, duty, or detriment cannot be transferred as an assignment without the agreement of the assignee . Furthermore, the assignment can be carried out as a gift, or it may be paid for with a contractual consideration .
Keep reading to learn how this important legal term is used both in contract and property law and to see relevant examples.
- Assignment Examples
A common example of assignment within property law can be seen in rental agreements between landlords and tenants. For example, a tenant may be renting from a landlord but wants another party to take over the property . In this scenario, the tenant may be able to choose between assigning the lease to a new tenant or subleasing it.
If assigning it, the new tenant will be given the entire balance of the term, with no reversion to anyone else being possible. In other words, the new tenant would have a legal relationship with the landlord. On the other hand, if subleasing the property, the new tenant would be given a limited term and no legal responsibility towards the property owner, only towards the original tenant.
Another example of assignment can be seen within contract law . Let’s say that a school hires a piano teacher for a monthly employment contract with a salary of $2000 per month. As long as there is consent from all parties, the teacher could assign their contract to another qualified piano instructor.
This would be an assignment both of the piano teacher’s rights to receive $2000 per month, and a delegation of their duty to teach piano lessons. This illustrates the fact that under contract law, assignment always includes a transfer of both rights and duties between the parties. If a breach of contract is made by either party, for example for defective performance, then the new teacher or the school can sue each other accordingly.
- Legal Requirements for Assignment
For an assignment to be legally valid, it must meet certain requirements . If these are not met, a trial court can determine that the transfer of rights did not occur. The legal requirements for assignment are as follows:
- All parties must consent and be legally capable to carry out the assignment.
- The objects, rights, or benefits being transferred must be legal.
- The assignment is not against public policy or illegal.
- Some type of consideration is included if necessary.
- The contract in question must already be in place and doesn’t prohibit assignment.
- If a duty is being transferred, and it requires a rare genius or skill, then it cannot be delegated.
- The assignment doesn’t significantly change the expected outcome of a contract.
- Assignment Steps
To successfully assign a contract, certain steps must be followed to ensure the process is legally valid. The necessary assignment steps are listed below:
- Ensuring there is no anti-assignment clause in the contract.
- Executing the assignment by transferring the obligations and rights to a third party.
- Notifying the obligor of the transfer, which in turn relieves the assignor of any liability.
- Avoiding Assignment
In certain situations, one of the two parties may not want to allow their counterpart to assign the contract. This can be prevented by setting anti-assignment clauses in the original contract. An example of this is making it necessary for prior written consent to be attained from the other parties before the assignment is approved. Nevertheless, an anti-assignment clause cannot be included in an assignment that was issued or ordered by a court.
- Assignment vs. Novation
Novation occurs when a party would like to transfer both the benefits and burden of a contract to another party. This is similar to assignment in the sense that the benefits are transferred, but in this case, the burden is also passed on. When novation is finalized, the original contract is deleted and a new one is created, in which a third party becomes responsible for all the obligations and rights of the original contract.
- Assignment vs. Delegation
Although delegation and assignment are similar in purpose, they are two different concepts. Delegation refers to transferring the obligation to a third party without an assignment contract . While in assignment an entire contract and its rights and benefits can be passed on, in delegation only a particular contractual task or activity is transferred.
Let’s look at an example . Lisa is a homeowner that wants to hire Michael with an independent contractor agreement to remodel her garage. He plans to do all the work himself, but he’s not a painter, so he wants to delegate the painting work to his friend Valentina.
In this example, the contract is between Lisa, the obligor, and Michael, the delegator. Valentina would then be known as a delegatee, she doesn’t assume responsibility for the contract nor does she receive the contractual benefits, which in this case would be monetary compensation. However, Michael may have a separate agreement with Valentina to pay her in return for her work.
It’s also important to note that some duties are so specific in nature that it’s not possible to delegate them. In addition, if a party wants to avoid delegation , it’s recommended to add a clause to prevent the other party from delegating their duties.
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Legal Assignment: Everything You Need to Know
A legal assignment occurs when a party assigns their contractual rights to a third party. 3 min read updated on February 01, 2023
A legal 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.
Assignment of Contract
A legal assignment occurs when:
- The rights in personal or real property are transferred from one party to another
- The transfer also gives the new owner the rights to the property that the prior owner held prior to the transfer occurring
In the Purman Estate case, the court stated that a legal assignment is a transfer of property, or of some right or interest, from one person to another. It also stated that it must be the proper transfer of one whole interest in that property.
An assignment of rights occurs when an assignor gives up or transfers their rights of a future benefit to another party. In other words, an assignment is the act of one party transferring, vesting, or causing to vest their interest in a property to another party. A valid legal assignment only occurs when all underlying elements of a lawfully binding contract are included in it, including intent. A trial court can determine if an assignment has occurred. To prevent disputes or miscommunications, it's important that the subject matter is clearly identified in the assignment.
A contract assignment occurs when a party assigns their contractual rights to a third party. The benefit 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. Essentially, the assignor prefers that the assignee reverses roles and assumes the contractual rights and obligations as stated in the contract. Before this can occur, all parties to the original contract must be notified.
How Assignments Work
The specific language used in the contract will determine how the assignment plays out. For example , one contract may prohibit assignment, while another contract may require that all parties involved agree to it before proceeding. Remember, an assignment of contract does not necessarily alleviate an assignor from all liability. Many contracts include an assurance clause guaranteeing performance. In other words, the initial parties to the contract guarantee that the assignee will achieve the desired goal.
When Assignments Will Not Be Enforced
The following situations indicate when an assignment of a contract is not enforced:
- The contract specifically prohibits assignment
- The assignment drastically changes the expected outcome
- The assignment is against public policy or illegal
Delegation vs. Assignment
Occasionally, one party in a contract will desire to pass on or delegate their responsibility to a third party without creating an assignment contract. Some duties are so specific in nature that they cannot be delegated. Adding a clause in the contract to prevent a party from delegating their responsibilities and duties is highly recommended.
Three Steps to Follow if You Want to Assign a Contract
There are three main steps to take if you're looking to assign a contract:
- Make sure the current contract does not contain an anti-assignment clause
- Officially execute the assignment by transferring the parties' obligations and rights
- Notify the obligor of the changes made
Once the obligor is notified, the assignor will effectively be relieved of liability.
If you'd prefer not to allow the party you're doing business with to assign a contract, you may be able to prevent this from occurring by clearly stating anti-assignment clauses in the original contract. The three most common anti-assignment clauses are:
- Consent required for assignment
- Consent not needed for new owners or affiliates
- Consent not unreasonably withheld
Based on these three clauses, no party in the contract is allowed to delegate or assign any obligations or rights without prior written consent from the other parties. Any delegation or assignment in violation of this passage shall be deemed void. It is not possible to write an anti-assignment clause that goes against an assignment that is issued or ordered by a court.
If you need help with a legal assignment, you can post your job on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Menlo Ventures, and Airbnb.
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- Assignment Law
- Assignment Contract Law
- Assignment of Rights and Obligations Under a Contract
- Assignment of Rights Example
- Consent to Assignment
- Assignment Legal Definition
- What Is the Definition of Assigns
- Delegation vs Assignment
- Assignment Of Contracts
- Assignment of Contract Rights
Assignments: why you need to serve a notice of assignment
It's the day of completion; security is taken, assignments are completed and funds move. Everyone breathes a sigh of relief. At this point, no-one wants to create unnecessary paperwork - not even the lawyers! Notices of assignment are, in some circumstances, optional. However, in other transactions they could be crucial to a lender's enforcement strategy. In the article below, we have given you the facts you need to consider when deciding whether or not you need to serve notice of assignment.
What issues are there with serving notice of assignment?
Assignments are useful tools for adding flexibility to banking transactions. They enable the transfer of one party's rights under a contract to a new party (for example, the right to receive an income stream or a debt) and allow security to be taken over intangible assets which might be unsuitable targets for a fixed charge. A lender's security net will often include assignments over contracts (such as insurance or material contracts), intellectual property rights, investments or receivables.
An assignment can be a legal assignment or an equitable assignment. If a legal assignment is required, the assignment must comply with a set of formalities set out in s136 of the Law of Property Act 1925, which include the requirement to give notice to the contract counterparty.
The main difference between legal and equitable assignments (other than the formalities required to create them) is that with a legal assignment, the assignee can usually bring an action against the contract counterparty in its own name following assignment. However, with an equitable assignment, the assignee will usually be required to join in proceedings with the assignor (unless the assignee has been granted specific powers to circumvent that). That may be problematic if the assignor is no longer available or interested in participating.
Why should we serve a notice of assignment?
The legal status of the assignment may affect the credit scoring that can be given to a particular class of assets. It may also affect a lender's ability to effect part of its exit strategy if that strategy requires the lender to be able to deal directly with the contract counterparty.
The case of General Nutrition Investment Company (GNIC) v Holland and Barrett International Ltd and another (H&B) provides an example of an equitable assignee being unable to deal directly with a contract counterparty as a result of a failure to provide a notice of assignment.
The case concerned the assignment of a trade mark licence to GNIC . The other party to the licence agreement was H&B. H&B had not received notice of the assignment. GNIC tried to terminate the licence agreement for breach by serving a notice of termination. H&B disputed the termination. By this point in time the original licensor had been dissolved and so was unable to assist.
At a hearing of preliminary issues, the High Court held that the notices of termination served by GNIC , as an equitable assignee, were invalid, because no notice of the assignment had been given to the licensee. Although only a High Court decision, this follows a Court of Appeal decision in the Warner Bros Records Inc v Rollgreen Ltd case, which was decided in the context of the attempt to exercise an option.
In both cases, an equitable assignee attempted to exercise a contractual right that would change the contractual relationship between the parties (i.e. by terminating the contractual relationship or exercising an option to extend the term of a licence). The judge in GNIC felt that "in each case, the counterparty (the recipient of the relevant notice) is entitled to see that the potential change in his contractual position is brought about by a person who is entitled, and whom he can see to be entitled, to bring about that change".
In a security context, this could hamper the ability of a lender to maximise the value of the secured assets but yet is a constraint that, in most transactions, could be easily avoided.
Why not serve notice?
Sometimes it's just not necessary or desirable. For example:
- If security is being taken over a large number of low value receivables or contracts, the time and cost involved in giving notice may be disproportionate to the additional value gained by obtaining a legal rather than an equitable assignment.
- If enforcement action were required, the equitable assignee typically has the option to join in the assignor to any proceedings (if it could not be waived by the court) and provision could be made in the assignment deed for the assignor to assist in such situations. Powers of attorney are also typically granted so that a lender can bring an action in the assignor's name.
- Enforcement is often not considered to be a significant issue given that the vast majority of assignees will never need to bring claims against the contract counterparty.
Care should however, be taken in all circumstances where the underlying contract contains a ban on assignment, as the contract counterparty would not have to recognise an assignment that is made in contravention of that ban. Furthermore, that contravention in itself may trigger termination and/or other rights in the assigned contract, that could affect the value of any underlying security.
What about acknowledgements of notices?
A simple acknowledgement of service of notice is simply evidence of the notice having been received. However, these documents often contain commitments or assurances by the contract counterparty which increase their value to the assignee.
Best practice for serving notice of assignment
Each transaction is different and the weighting given to each element of the security package will depend upon the nature of the debt and the borrower's business. The service of a notice of assignment may be a necessity or an optional extra. In each case, the question of whether to serve notice is best considered with your advisers at the start of a transaction to allow time for the lender's priorities to be highlighted to the borrowers and captured within the documents.
For further advice on serving notice of assignment please contact Kirsty Barnes or Catherine Phillips from our Banking & Finance team.
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EPAM Defends Interests of Tele2 in Case Against Moscow Metro
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Egorov Puginsky Afanasiev & Partners has successfully defended the interests of T2 Mobile (Tele2) – a nation-wide mobile operator in Russia – in what the firm describes as "a precedent-setting case against the Moscow Metro regarding unfair tariffs for placing telecommunications equipment in the metro."
EPAM was able to convince the competition authority of the Metro’s dominant position as sole owner of unique infrastructure, and "of the unfounded and discriminatory nature of the one-off payment applied to Tele2 for placing communications equipment at each station."
As a result, the firm reports, "the Moscow Office of the Federal Antimonopoly Service issued a warning requesting that the Moscow Metro rescind the discriminatory tariffs for Tele2 and offer [it] the same conditions for placing telecommunications equipment as those enjoyed by other telecom operators. This will have a positive effect on competition in the sector. The warning is an important step in allowing a fourth telecom provider to become fully operational in the metro and will ensure that Tele2 customers can make the most of its telecommunication services."
The EPAM team consisted of Partner Anna Numerova, Counsel Denis Gavrilov, and Associate Alexander Balyberdin.
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Assignment from a tenancy
Requirements and formalities for assigning a tenancy, and liability for rent indebtedness of old and new tenants.
What is assignment
Rights to assign.
- Forbid and consent
- How to assemble a tenancy
- Liability and assignment
Duty is a route so a tenant can transfer their tenancy to another person.
On allocation, the assignor's legal interest in one property is deceased to that assignee who takes over that interest and becomes aforementioned tenant. All the key of the original tenancies agreement apply to both the new tenant and the landlord, include that billing of rent payable. Adding new tenant on accord
Where a tenant grants someone a type and remains a tenant of the original rental this won’t be to assignment. Instead adenine subtenancy is created, and the original tenant becomes the housing of the new member.
Whether assign is potential will pending with:
the type of tenancy
what the tenancy agreement says
whether the landlord approves
Under section 1(1) in the Laws of Property Act 1925 all tenants, include those with one long lease, have a legal estate (an interest) inbound land. In on comes an widespread right-hand till assign that heritage in additional persons.
For many genre on tenancy this general right is modified of law provisions so limit for and to whom the tenancy can be assigned. This will override the general right to assignment. Assigning a council or housing association tenancy - Shelter English
Joint tenancies can be assignments aber are still subject to the statutory rules for that type on tenancy. 
A tenancy agreement can furthermore limit for the how ampere tenancy can be assigned. By example, by requirement the landlords consenting.
Find out continue about rights to assignment for:
secure, flexible and introductory rents
assured and assured shorthold rental
Licences is not a legitimate engross in land and cannot shall assign.
Prohibition and consent
If the tenure arrangement says nothing about assignment then, subject to any statutory feature, the tenant is free into assign.
Inches mostly cases, the tenancy arrangement will only allow assignment if the landlord gives their consent (a proficient prohibition).
If the tenancy agreement states that assignment is not allowed (an absolute prohibition), the tenant can still give but they will must inbound breach of aforementioned tenancy.
Whenever the tenancy agreement contains a qualified banning stating that the tenant may not assign excluding the landlord's consent, later the renter not ‘unreasonably withhold’ consent.  Those is an implicit term of the agreement.
Or consent has been unreasonably withheld will depend on which facts of this crate. 
The courts have previously held that:
the purpose of a term in a tenants agreement interdiction assignment without the landlord's consents is into protecting landlords from having their premises occupied in an undesirable way or by an undesirable assignee. The landlord unable refuse consent on grounds that have nonentity to do with that relationship to landlord and tenant, but can turn if to potential assignee is don, for exemplary, financially sensible 
it may be reasonable by a landlord to refuse consent why of that purpose for which the assignee intent to using the premises, even if that purpose are not forbidden by the originally tenancy consent 
despite house need only usually consider their own interests, there may be cases where on is such a inequality between to detriment to the property and the detriment to aforementioned allocate tenant that it would must unreasonable for the landlord to refuse accept.  A example by this might to where the property is very difficult to assign and who tenants would having great difficulty in finding another possibility assignee, whereas the landlord's loss by accepting this proposed tenant exists minimize
The court has held that consent was nope considered to be unreasonably hidden where the tenant had arrears. 
For tenancies granted after 1 January 1996, a housing has the right, in certain circumstances, to require such the tenant wishing to assign should act as and guaranteer of that new assignee where it is moderate into do so. 
To Equality Act 2010 makes this unlawful to a landlord to refuse consent on the grounds of a screened characteristic (disability, gender reassignment, pregnancy or maternity, race, sex, sex-related orientation, and religion or belief). 
AN person who has the right to dispose of premises must not lawless discriminate against any person off the basis about any of the above protected characteristics by: 
the terms on which they offer to disposed of this premises
falling to dispose of the premises, alternatively
the way in which they treating a person seeking to move in to the premises
The law to dispose of premises includes the right to assign. 
Getting the landlords consent
If a tenancy is assigned without consent where the agreement requires it, such offers a earth for proprietary against of new tenant.
It is doesn possible to argue that of landlord could not do modest refused permission after the assignment had taken place. 
The Landlord additionally Inhabitant Act 1988 introduced a procedure that can be followed to obtain consent. It applies where the tenancy contractual contains a qualified prohibit against assigning. The Act single applies to browse for consent made after 29 September 1988. A does not apply to secure tenancies. You canned only sign own tenancy over to someone anything in certain situations. Check the rules if you what to swap homes or change a name on your agreement.
That tenant required serve a written application for consent to assign on the landlord, and the landlord have reply in writing within a reasonable hours (the Act does not define something is a reasonable time), giving consent unless it a reasonable not to make so.
If consenting is refused, that landlord musts gifts the lodger rationale for the refusal.  Whenever an landlord does not reply or withholds consent unreasonably, the tenant be be able for take a private active for damages against the landlord for breach concerning this duty.  The onus of proof that no deny of consent was reasonable is on the landlord. 
Tenants couldn also pursue a declaration that the landlord is acting overly where they do not want into take aforementioned risk of assigning without consent. Alternatively, the tenant able fuse a claim for damages for breach of statutory duty with one for an injunction requiring the landlord to comply use own task. ... assignment for assured (non shorthold) tenancies ... If such an order is made, the tenancies shall only transferred when the deed of assignment is ...
Assignment without consent or where banned
Where the tenancy agreement has into absolute or qualified prohibitions against assignment and the tenant assigns the tenancy without the landlord's consent, this assign will still be effective as long as computer is by deed. 
However, the landlord may be competent to bring possession proceedings against the new tenant.
How to assigning a tenancy
In order for an associations into exist legal, it must be made by title. ADENINE deed is a written select that has been signed and labelled as a license also witnessed. This be necessary in request for this mission to bonding to landlord and any other party affected by the assignment but don part of the agreement in allocate.
A deed is required even where which original tenancy was agreed orally. 
In one case, even though the tentant had undertaken with separate proceedings to transfer the tenancy into is wife's name, the fact that there was no handlung meant that and assignment be found not to have occurred. Nothing was done to transfer the tenancy the of wife's name, although she continued to live in that flat on her own and pay the hire. If she asked the managing agents to put this rent book in her name, they recovered possession is which property. 
The deed must give the name(s) and address of the original tenant(s) and one new tenant(s) (the address might be the same, depending for the situation). It must also make the details of the landlord. With self-employed person must witnessed the autographs of the original tenant(s) and the new tenant(s), but the same person can witness all the signatures. Assignments
The new tenants should keep who exploit of assignment by to prove that mission taking place. It’s other a good idea for the outgoing tenant to must a copy in case of any controversies.
An attempt to assign a tenancy without satisfying all the formalities of a records may still live effective such equitable appointment are the agreement to assign is evidenced in writing.  The equitable assignment will bind the partying who signed the written agreement and make them inclined to damages for crack of compact as well as to orders for specific performance.
Arrears and assignment
The new renting is not liable for rent arrears the accrued before they have over the tenancy. 
An assignee is not legally liable into meet the contractual terms of the original tenant's deal with the tenant where the liability arose front the duty.
One original tenant is the only person who can legally becoming sued with any arrears present at the time of assignment.
In practice, some local officials require which assignee to clear any existing arrears. An Ombudsman's decision held that one agreement to clear arrears could be deemed to constitute an illegal special, and enforceability of which agreement would be due no applies certain. 
Arrears following assignment
For tenancies arising on or after 1 January 1996,  normally only the assignee can be held accountable for rent date after the assignment.
The except is where either:
there is one prohibition against assignment and the landlord's consent shall have been obtained also was not
the original tenant agreed to deal than a guarantor of the new assignee
Where the tenancy was created prior to 1 Jan 1996 (or in one of to other cases mentioned above), the landlord can take action for arrears against either the assignee or aforementioned assignor. ... Assured Shorthold Tenancy Consent · Tenant Fee Ban · Electrical Safety ... tenants additionally the replacement tenant can sign a deed of assignation. This willingly transfer ...
However, if the landholder wishes to take action against the assignor, they must notify the assignor of the defaults over a prescribed submit within six months by the arrears falling due.  The assignor will remain able to sue the assignee if they have to pay the rental arrears, as there is an implication term in all deeds about assigned that indemnifies the assignor. 
Last updated: 12 Trek 2021
Burton five Camden LBC  UKHL 8.
s.19(1)(a) Landlord and Tenant Act 1927.
Braun v West Anglo-Continental Investment A Ltd  240 EG 927.
Fibs and Houlder Bros and Co. Ltd Charter, Houlder Bros additionally Co. phoebe Gibbs  Ch 575, CA.
Rossi v Hestdrive Ltd  1 EGLR 50.
International Drilling Fluids Ltd vanadium Louisville Investments (Uxbridge) Plc  Ch 513.
Greenwood Reversions Private v World Atmosphere Foundation Ltd and Mehra  EWCA Civ 47.
s.16 Landlord and Tennant (Covenants) Act 1995.
ss.2-8 and s.32(1) Equality Act 2010.
s.33(1) Equality Act 2010.
s.38 Equality Act 2010.
Hendry v Chartsearch Ltd, The Ages, 16 September 1998 APPROVAL.
s.1(3) Landlord and Tenant Act 1988.
s.4 Landlord and Tenant Act 1988.
s.1(6)(c) Landlord real Tenant Act 1988.
See for example the assured tenancy case of Haven Housing Association v Baker (1997) 30 HLR 809.
ss.52-53 Statute of Lot Act 1925.
Crago v Julian (1991) 24 HLR 306 CA.
s.2 Law are Property (Miscellaneous Provisions) Act 1989.
s.17 Landlord and Tenant (Covenants) Act 1995.
Ombudsman Investigation 90/B/1668, 5 December 1995, Wellingborough BC.
s.5 of the Landlord and Tenant (Covenants) Act 1995
s.17 Householder and Tenant (Covenants) Doing 1995.
s.77 and Parts 7, 8, and 9 from Sch.2 Law of Ownership Act 1925.
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Kamaz FTL hauler registers NatCar brand
MOSCOW. Sept 4 (Interfax) - National Carrier JSC, the full truckload freight trucking company headed by former Globaltruck CEO Ilya Sattarov that Russian truck maker Kamaz founded this summer, applied to register the brand NatCar at the end of August, the registry of federal intellectual property service Rospatent showed.
The NatCar brand is also mentioned in the recruitment ads of National Carrier, which is actively looking for E-class drivers. It is offering working with this year's model Kamaz diesel trucks from the flagship K5 line and new dry goods (curtainsider) and refrigerated trailers.
National Carrier was founded on July 7 in Moscow with charter capital of 1 billion rubles, the Unified State Register of Legal Entities showed. The company registered two branches in early August, in Yekaterinburg and Elektrostal, Moscow Region. The company specializes in truck logistics and associated activities, including digitization processes.
A spokesman for National Carrier told Interfax earlier that the company plans to provide FTL trucking services using its own fleet, "as well as the resources of hired truckers." The company's fleet will initially consist of 400 semi-trailer trucks with a 50/50 ratio of curtainside to refrigerated trailers, and it plans to primarily operate on domestic routes, he said.
The company has preliminary agreements with major customers among marketplaces and retailers in the FMCG and DIY segments, the spokesman said. Strong demand for trucking services is expected toward the end of the year, so there is interest from customers, he said.
Kamaz marketing director Ashot Arutyunyan announced at the International Moscow Automotive Forum at the end of August that the truck maker was the principal investor in National Carrier. He did not comment on the new company's shareholder structure, but said it is a Kamaz startup.
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