Where the tenant dies and the tenancy passes to a surviving resident of the dwelling. The right to succeed to a tenancy varies with the type of tenancy.
It must be noted that in the case of the death of a joint tenant, the tenancy automatically passes to the remaining joint tenant(s). This doesn’t constitute a succession in regulated (i.e. Rent Act) tenancies. However in housing association secure tenancies it will count as the first and only succession to a secure tenancy.
On the death of original tenant to the tenancy
Only the original tenant’s spouse or civil partner can succeed to a regulated tenancy. To qualify the spouse or civil partner must have lived at the premises immediately before the death. There is no further right of succession.
Spouse means any person living with the original tenant as husband or wife. Civil partner means someone with whom the tenant has either registered as a civil partner or with whom the tenant is living as if they were civil partners.
Mr Jones was a tenant of 1 Smith Street. The tenancy began 1st February 1970. He married Mrs Jones in 1972. Mr Jones Died in February 1988. His wife would succeed to the regulated tenancy.
Although only a spouse or civil partner can succeed to the regulated tenancy, other family members can be entitled to remain in the property as assured tenants. A member of the original tenant’s family can succeed to an assured tenancy, provided that:
- the tenant died between 15 January 1989 and 14 July 1990
- the successor must have lived with the tenant for 6 months prior to 15 January 1989 and continued to live there * until the tenant’s death
- the tenant died after 14 July 1990
- the successor must have lived with the tenant for 2 years prior to death.
Mrs Jones (from Example 1) dies on 13 July 1990, and her son was living at the dwelling at the time of death and since November 1989. The son would succeed to an ASSURED tenancy as he was a member of the original tenant’s family AND the 1st Successors family. He also met the qualifying test for residency (at time of death and 6 months prior to death)
Had Mrs Jones died 16th July 1990, the son would NOT qualify to succeed to an ASSURED Tenancy, because qualifying test had changed to being resident 2 years prior to death.
The old rules were that people with close personal connections, but who were not relatives, could not qualify as members of each other’s family for purposes of succession. An example would be a platonic relationship between a widow and a younger man. These old rules may no longer apply if the people concerned are civil partners, or are living together as if they were civil partners or a couple.
On the death of the first successor
A member of the first successor’s family who:
- had also been a member of the original tenant’s family; and
- had lived with the successor for two years prior to the successor’s death;
- succeed, but only to an assured tenancy.
As an example, if the original tenant were a married man with a child, on his death his wife would become the first successor. On the wife’s death, providing the child had lived with its mother for two years prior to her death, the child would succeed to an assured tenancy. But, if the original tenant and his wife had no children, and after the husband had died, the wife had a child through a later marriage or relationship; her child could not succeed to a tenancy. This is because, although the child would be a member of the first successor’s family, it was never a member of the original tenant’s family.
Mrs Jones (from example 1) re-married in 1989 and became Mrs Smith. She died on 13 July 1990. Her son was not resident. Her second husband was resident at the time of death and 6 months prior to death. The second husband could NOT succeed to any tenancy as he is not a member of the ORIGINAL tenant’s family, only a member of the first successor’s family (but do remember joint tenancy provisions mentioned at the start of this section).
- Rent Act does not say what “member of the original tenant’s family” means. But the courts have ruled that the term should be given “a wide and liberal interpretation”. The test is whether an ordinary individual taking a common sense, approach, would see the person as a member of the tenant’s family. So, anyone who is a relative in the wide popular sense of the term may count as a member of the family. This includes children, parents, brothers and sisters. The law is less certain as to more remote relatives.
Mr Smith was the tenant of a dwelling from January 1980 and lived with his partner Mr Jones from February 1990. Mr Smith died in July 2010. Mr Jones was resident at death and for 2 years prior to death. Mr Jones would succeed to the regulated tenancy as, although he was not formally a civil partner of Mr Smith, he would be treated as living with Mr Smith as his long-standing partner, and as such would be treated as his spouse.
Second successions to regulated tenancies occurred prior to the coming in to force of the Housing Act 1988 on the 15th January 1989 so some may still exist.
Prior to the Rent Act 1965 which commenced on the 8th December 1965 there was only one succession
Mr Gray was the tenant of a dwelling from January 1952 living with his wife and son. He died in July 1960 and his wife succeeded to his tenancy. She died in November 1965. Their son who was living at home at the time is likely to have been allowed to stay in the property but he would not be a second successor, as he would had his mother died on or after 8th December 1965; he would be a new original regulated tenant. Any works his parents carried out to the property would revert to the landlord.
Housing association secure tenancies
If the tenant was a sole tenant either the tenant’s spouse, civil partner, or a member of the tenant’s family who had lived with the tenant for 12 months prior to the tenant’s death can succeed to another secure tenancy. There are no further succession rights.
Unlike the Rent Act, the Housing Act 1985 defines the term “a member of the tenant’s family”. It means:
- spouse or civil partner of the tenant, or someone living with the tenant as spouse or civil partner; or,
- person’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or niece.
In interpreting these provisions:
- relationship by marriage shall be treated as a relationship by blood;
- relationship of the half-blood shall be treated as a relationship of the whole blood;
- stepchild of a person shall be treated as the child of that person;
- illegitimate child shall be treated as the legitimate child of his/her mother and reputed father.
Mr Brown was the secure tenant of a dwelling from January 1980 and lived alone with his son. Mr Brown died in July 2010. His step-son was resident at death and for 12 months prior to death. The step-son would succeed to the secure tenancy as he met the qualifying requirements and was a member of the original tenant’s family.
- law regarding Housing Association secure tenancies is defined further by Section 88 of the Housing Act 1985, which describes some tenancy changes which are not successions but which are treated as successions. This means that
- tenancy changing from a joint tenancy to a single tenancy, by one or more of the joint tenants dying or just vacating the premises and leaving one or more of the remaining joint tenants, or
- assignment of the tenancy, except for any assignment made as a result of proceedings under the Family Law Act (or before 1996, under the Matrimonial Homes Act) as part of a divorce settlement, the assignee only being treated as a successor if they were a successor at a former tenancy, so effectively the assignor status is passed to the assignee
- treated as though it was the first succession under the secure tenancy. There are therefore no further succession rights
Mr & Mrs Brown were joint secure tenants of a dwelling from January 1980 and lived with their son. Mr Brown died in July 2010, and Mrs Brown died in September 2011. Their son was resident at death and for 12 months prior to death of Mrs Brown. The son would NOT succeed to the secure tenancy as, although he met the qualifying requirements and was a member of the original tenant’s family, there can be only one succession to a secure tenancy, and S88 (1) (b) of The Housing Act 1985 states that death of a joint tenant is treated as the one and only succession, so Mrs Brown was the first and only successor to the secure tenancy. There are no further succession rights.
Mr Brown was a secure tenant of a dwelling from January 1987 after he succeeded to his father’s tenancy and lived with his wife. Mr Brown separated from his wife, and they divorced in 2010. The Court allocated the tenancy to Mrs Brown. Mrs Brown takes the role of successor in place of her former husband.
Mr Brown was a secure tenant of Flat 21 in a block from January 1987 after he succeeded to his father’s tenancy. He decides to exchange tenancies with Mr Green who is an original secure tenant at Flat 23 in the same block. This is an assignment by way of exchange under s88 (3) of the Housing Act 1985. In this case, after the exchange, whilst the principle of mutual exchange is that the tenancies are “exchanged”, the tenants’ successor status will be retained by the individual tenants, so Mr Brown will retain his status as successor even though he moves to another dwelling. Mr Green will retain his status as an original tenant.
Shared ownership leases
For shared ownership leases, on the death of the tenant the lease is vested in the deceased’s estate until assigned to a new shared ownership tenant by the executors of the estate and the landlord. Therefore succession cannot take place.
Rent (Agriculture) Act 1976 tenancies
A spouse or civil partner succeeds to a statutory tenancy under the Rent (Agriculture) Act on the death of the original qualifying occupier or statutory tenant (occupier or tenant depends on the statutory tenancy having commenced).
If there is no spouse or civil partner, a family member who has lived with the original occupier for two years prior to his death can succeed to:
- statutory tenancy under the Rent (Agriculture) Act if the original occupier died pre 15 January 1989
- assured tenancy if the original occupier died on or after 15 January 1989
There are no further succession rights.
Again, the Act does not define who are members of the deceased’s family. The rules are basically the same as for a regulated tenancy. In both cases the test is whether an ordinary individual, taking a common sense approach, would see the person as a member of the tenant’s family.
- Transfer / Assignment / Mutual exchange
- Housing association tenancy
- Regulated tenancy
- Agricultural tenancy - Rent (Agriculture) Act 1976
- Jurisdiction - deciding jurisdiction