Tenancy rights of succession
17th March 2021
17th March 2021
In certain circumstances, a right to succeed (or inherit) a tenancy will exist in the event of a tenant’s death. This will apply even in the case of a modern Assured Shorthold Tenancy as well as ‘older’ forms of tenancy.
Whether a right of succession will exist, what the conditions are and what type of tenancy will be acquired by the successor will depend on the type of tenancy held before the tenant’s death, and which of the various statutory regimes apply. These succession rights will apply automatically by operation of law, and where a right of succession exists that will take precedence over any bequest in the tenant’s Will or under the intestacy rules.
The statutory succession rights are set out below. Local Authority landlords and Registered Providers of Social Housing can provide for more favourable succession rights either in their tenancy agreement or their own housing policies, and are outside the scope of this Legal Update.
Assured and Assured Shorthold Tenants under the Housing Act 1988
Where the tenant had a periodic assured or assured shorthold tenancy (AST) immediately before their death, their spouse, civil partner or person living with the tenant as spouse or civil partner is entitled to succeed to the tenancy, where they were also occupying the property as their only or principal home with the tenant immediate before their death. The successor will acquire the same tenancy enjoyed by the tenant, so in the case of an AST, the successor will acquire an AST by succession.
Only one succession is permitted under the Housing Act 1988, and is only available where the tenancy is a sole tenancy, e.g. the succession rights will not apply in the case of joint tenancies. Where a joint tenant dies, the tenancy continues in favour of the surviving joint tenant by survivorship. A succession is not possible where the tenant was themselves a successor tenant.
Rent Act 1977 Tenancies
In the case of Rent Act 1977 tenancies, different rules apply. A spouse, civil partner or person living with the tenant as a spouse or civil partner can succeed to the tenancy, where they were also residing at the premises with the tenant immediately before their death. They will take a Rent Act 1977 statutory tenancy.
Under the Rent Act 1977, a family member may also succeed to the tenancy where they were residing with the tenant for two years before their death. A family member will take an assured tenancy under the Housing Act 1988, rather than a tenancy under the Rent Act 1977. As a result, the rent payable by the successor will not be subject to a fair rent registration as is the case with Rent Act 1977 tenancies, and a market rent will be payable.
There are potentially two successions available in the case of a Rent Act 1977 tenancy, where the first succession is to a spouse, civil partner or person living with the tenant as spouse or civil partner, and the second succession is to a family member (who must be a family member of both the original and the successor tenant).
Tenancies under the Housing Act 1985 (e.g. Local Authority Tenancies and some Housing Association Tenancies)
The succession rights under the Housing Act 1985 are more complicated and depend on when the tenancy was granted, following changes introduced by the Localism Act 2011.
Pre-01 April 2012 tenancies
For secure periodic tenancies granted prior to 01 April 2012, a spouse, civil partner or a member of the tenant’s family (to include a person living with the tenant as spouse or civil partner) can succeed to the tenancy. The only requirements for a spouse or civil partner to succeed is that they lived with the tenant, and the property was their only or principal home, at the time of the tenant’s death. For family members, they must have been living with the tenant for 12 months prior to their death, and they must have been occupying the premises as their only or principal home with the tenant. The secure tenancy held by the tenant will be acquired by the successor.
Only one succession is available. There is no right of succession where there is a joint tenancy, as the death of one joint tenant is treated as a succession. There is also no right of succession where the tenant was a successor or where there had been an assignment of the tenancy to a potential successor during the tenant’s lifetime.
Where the succession is to a family member, the landlord can seek possession of the premises under Ground 15A, Schedule 2 of the Housing Act 1985, where the accommodation is more extensive than is reasonably required by the successor (e.g. case of under-occupation). The Court must be satisfied that :-
• suitable alternative accommodation will be available for the tenant when the order takes effect; and
• it is reasonable to make the order.
In that event, notice of seeking possession must be served specifying Ground 15A, no earlier than 6 months and no later than 12 months after the death (or the landlord’s knowledge of the death).
The Housing and Planning Act 2016 introduces restrictions on ‘lifetime’ secure tenancies for family members succeeding to a secure tenancy under the Housing Act 1985, and replaces the current succession rules with a right to succeed to a five-year fixed term tenancy (instead of a periodic secure tenancy). At present, the relevant provisions are yet to come in force, so these provisions have not yet taken effect.
Post-01 April 2012 tenancies
For tenancies under the Housing Act 1985 granted on or after 01 April 2012 (secure, introductory and flexible tenancies), only a spouse, civil partner or person living with the tenant as spouse or civil partner can succeed to the tenancy, bringing the succession rules in line with those under the Housing Act 1988. The right to succeed will apply where the successor has been living with the tenant and occupying the premises as their only or principal home before the tenant’s death. The successor will acquire the tenancy held by the tenant prior to their death.
The same restrictions on successions apply as with pre-01 April 2012 tenancies as above.
Family members under the Housing Act 1985
Family members are expressly defined in Section 113 of the Housing Act 1985 as a person living with the tenant as spouse or civil partner, parents, grandparents, children and grandchildren, brothers and sisters, uncles, aunts, nephews, nieces. Relationships of marriage are treated as relationships of blood, meaning that step-children are treated as children of the step-parent. ‘Children’ does not, however, include foster children. There is no definition of a family member under the Rent Act 1977, but the Housing Act 1985 definition gives a good indication of what would be accepted.
Succession to a child
Where a child succeeds to a tenancy, the tenancy is held on trust (either by the landlord or by an personal representatives named in the tenant’s will) until the successor child reaches the age of 18.
Any arrears owing by the tenant do NOT pass to the successor. The debt is owed by the tenant’s estate, which may in turn be the successor if they are the personal representative and beneficiary of the tenant’s estate.
Whether or not an occupier has a right to succeed to or inherit a tenancy following the tenant’s death will depend on the type of tenancy held by the tenant prior to their death and whether the occupier has satisfied the statutory criteria set out above. In each case, the evidence presented should be considered carefully to ensure that the ‘would-be’ successor has satisfied the criteria, for example when it comes to minimum residency requirements. This is particularly important where occupiers are to take on a valuable ‘life time’ tenancy (such as a secure, assured or Rent Act 1977 tenancy), which is difficult to terminate in the absence of any grounds for possession being made out.
This legal update is provided free of charge for information purposes only; it does not constitute legal advice and should not be relied on as such. No responsibility for the accuracy and/or correctness of the information and commentary set out in the article, or for any consequences of relying on it, is assumed or accepted by any member of KDL Law or by KDL Law as a whole.
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