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Who can succeed to a social housing tenancy
Posted on 17/05/22 in Housing Matters
Madeleine Hunter, a caseworker at Shelter, explains who can inherit a secure or assured tenancy after the tenant dies.
What is succession
Succession happens when someone inherits a tenancy after the tenant dies.
Succession usually happens automatically if specific criteria are met. The criteria which apply depend on the tenancy type.
Usually only a spouse, partner or family member can succeed. They must be living with the tenant when the tenant dies.
For most tenancies, there can only be one succession. If the tenant who dies had succeeded to the tenancy themselves (for example if they had inherited the tenancy from a parent or spouse), there can usually only be a further succession if the tenancy agreement specifically allows for it.
Who can succeed to a tenancy
There are different rules depending on whether it is a joint or sole tenancy.
When one joint tenant dies the remaining joint tenant becomes a sole tenant. This is known as survivorship.
This applies to all types of council and housing association tenancy, including secure and assured tenancies.
The tenancy stops being a secure or assured tenancy if the remaining tenant is not living there as their only or principal home. The tenancy can regain its status if the remaining tenant moves in, unless the landlord has served a notice to quit which has expired.
The following people might be able to succeed to a sole social housing tenancy, if they meet the additional conditions:
- the deceased tenant’s spouse or civil partner
- the deceased tenant’s cohabitee
- the deceased tenant’s other family members,
Family members include parents, grandparents, children, grandchildren, siblings, uncles, aunts, nephews and nieces. This can also include step and half relations.
The rules on succession are different depending on the type of council or housing association tenancy the tenant had.
Council tenancy rules
Most long term council tenancies are secure tenancies. There are different rules depending on when the tenancy began.
Secure tenancies which began before 1 April 2012
The tenant’s spouse or civil partner succeeds if they live in the property as their main home when the tenant dies.
Where there is no spouse or civil partner, a cohabitee or another family member can succeed if they were living with the tenant as their main home when the tenant dies and for 12 months before that..
Where there is more than one family member who is entitled to succeed, only one can succeed to the tenancy. If the family members cannot agree, the landlord decides which family member succeeds.
Secure tenancies which began on or after 1 April 2012
Usually only the tenant’s spouse, civil partner or cohabitee can succeed to the tenancy.
Where there is no spouse, civil partner or cohabitee, succession to another family member can only occur if there is a clause in the tenancy agreement which allows for this. Check if the tenancy agreement has a clause which allows succession to another family member.
A flexible tenancy is a form of secure tenancy granted for a fixed term, usually five years.
For flexible council tenancies, succession does not happen automatically. The tenancy can be passed on through a will to a spouse, civil partner or cohabitee.
If there is no spouse, civil partner, or cohabitee it may also be passed through a will to a family member if the tenancy agreement allows for this.
Flexible tenants should get advice on dealing with their tenancy when making a will.
Housing association tenancy rules
Long-term tenancies with a housing association are usually assured tenancies. There can usually only be one succession to the tenancy.
The deceased tenant’s spouse, civil partner or cohabitee can succeed if they were living in the property as their main home when the tenant died.
Where there is no spouse, civil partner or cohabitee, other family members can succeed if the tenancy agreement allows for this. There are usually requirements in the tenancy agreement about how long a family member needs to have lived with the deceased tenant in order to succeed.
Where the assured tenancy started on or after 1 April 2012, succession to a family member counts as the sole succession allowed for the tenancy.
Where the assured tenancy started before 1 April 2012, succession to a family member would not count as the one succession. There could be a second succession if the tenant dies.
How to prove someone can succeed
The successor usually needs to give the landlord supporting information to show they can succeed. For example, a marriage certificate to prove that the successor was a spouse of the deceased tenant.
If it is required, a successor might also need to show evidence they were living with the tenant at the time of the tenant’s death.
Evidence could include:
- bank statements
- wage slips or benefit letters
- bills addressed to the property with their name on them
If the landlord does not agree that succession has taken place
If the landlord disputes that someone has the right to succeed to the tenancy, they could serve notice to quit on the basis that the tenancy has lost its secure or assured status. A family member still living in the property should seek legal advice.
The family member can defend the possession proceedings if the landlord applies to court. If a defence is raised, the judge can consider whether succession has occurred and if the family member can be evicted.
Succession outside the rules
Social landlords can consider a non-statutory or discretionary succession. This might allow a family member to succeed even if they do not meet the legal requirements to do so.
Landlords will consider this on a case-by-case basis. Many social landlords have a policy on non-statutory succession which should be available online or by request.
Possession proceedings against a successor
A landlord might be able to evict a successor in certain circumstances.
For secure council tenancies, the landlord can serve a notice of seeking possession if the property is under-occupied by a family member after succession has taken place. This cannot be used if a spouse or civil partner succeeded.
The notice must be served between six and 12 months after the tenant’s death, or the date the landlord became aware of this. The landlord must offer suitable alternative accommodation.
If no one is entitled to succeed
If there is no successor, the tenancy becomes part of the estate of the deceased tenant. A landlord can seek possession by serving a valid notice to quit on the executor of the will or administrator of the tenant’s estate. The person dealing with the estate might agree to surrender the tenancy to the landlord.
The tenancy vests in the Public Trustee if there is no successor and no will. A landlord would need to service a valid notice to quit on the Public Trustee. The landlord can then take possession proceedings against anyone living in the property.
An assured tenancy can be passed on under a will or intestacy rules. If the tenancy is passed on via intestacy, the Public Trustee can assign the tenancy to the inheritor.
The landlord can serve a notice of seeking possession on someone who has inherited an assured tenancy in this way if they were not a statutory successor. The landlord can serve notice on the inheritor within 12 months of the tenant’s death or the date the landlord became aware of this. There is usually no defence to the proceedings.
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