Succession rights

This content applies to England only.

Housing laws vary between England and Scotland. This page applies to England only. Get advice relating to Scotland

A tenancy does not automatically end when the tenant dies. Legally, a tenancy counts as property and can be passed on in a similar way to owner occupied property. This process is called 'succession'. The right to succeed normally depends on how you are related to the person who died, and how long you have lived together.

Your rights will also depend on what kind of tenancy the person who died had. Use our tenancy checker to work this out and contact an adviser if you have problems - use our directory to find one.

Things to consider

Although you may have the right to take over a tenancy by succession, you don't have to if you don't want to. You should think carefully before you decide, and get advice if you are not sure. Important questions to consider are:

• Will you be able to afford the rent? If your budget is likely to be overstretched, you may end up with rent arrears, which could lead to eviction.
• Do you want to remain in a property where a close relative died?
• Is the landlord likely to try to evict you if you take over the tenancy?
• What other alternatives do you have? For example, would you prefer to move closer to family and/or support networks?
• If you do not stay, are you likely to need help finding somewhere else? If you approach the council for help, they may decide that you are intentionally homeless because you gave up a home that you could have stayed in.

Succeeding to a council tenancy

If you live in a council property, the rules are broadly the same for all types of tenancy but there are some differences.

If you have a joint tenancy, the surviving tenant will automatically take over the whole tenancy. If you are not a joint tenant, you may be able to take over the tenancy by succession if you are:

• the tenant's spouse or registered civil partner, as long as you were living together at the time of their death (or, if the tenancy is a demoted tenancy, for at least a year beforehand), or
• another family member (this includes cohabiting partners, children, parents, siblings and most other close relatives) as long as there is no surviving spouse or civil partner and you were living with the deceased for at least a year before their death.

If you succeed to a council tenancy, you would have the same type of tenancy as the person who died had. So if they had an introductory tenancy or a demoted tenancy, it will remain introductory or demoted until the full trial/demotion period has passed. Remember to stick to the conditions of the tenancy agreement to avoid the risk of eviction.

If you succeed to any type of council tenancy, you also need to be aware that there is a chance that the council may try to evict you on the grounds that the home is now larger than you need. The council cannot do this if you are the spouse or registered civil partner of the person who died, but they can do so if you are related in any other way, including if you were cohabiting. If it does happen, the council must provide a suitable alternative home for you. Get in touch with an adviser immediately to find out whether you can challenge the eviction.

If you are living in temporary accommodation that was provided after you made a homelessness application, you do not have a council tenancy and therefore do not have succession rights. However, it may be possible to ask the council to grant a new agreement in your own name. Contact the council or a local advice centre urgently to discuss your situation.

Succeeding to a housing association tenancy

In most cases you will be able to succeed to a housing association tenancy if:

• you are the spouse, registered civil partner or cohabitee of the tenant, and
• the property is your only or main home and
• there has been no previous succession.

It is not normally possible for other family members (eg children) to take over a housing association by succession unless:

• the tenancy is a secure housing association tenancy
• the other family member had been living in the home for at least 12 months before the tenant's death, and
• there is no surviving spouse or partner who is eligible to succeed.

As with council tenancies, you would normally succeed to the same type of tenancy as the person who died. So if they had a starter tenancy or a demoted housing association tenancy, it will remain introductory or demoted until the full trial/demotion period has passed. Remember to stick to the conditions of the tenancy agreement to avoid the risk of eviction.

If the person who died had an assured tenancy and you are not their spouse or partner, you also need to be aware that there is a chance that the housing association may try to evict you if they think the property is now larger than you need. The housing association normally has to provide a suitable alternative home for you. Get in touch with an adviser immediately if you receive any papers suggesting that the housing association wants to do this.

Succeeding to a private tenancy

Most private tenancies give you very limited security. This includes assured shorthold tenancies, which is the type of tenancy most private tenants have.

Private landlords don't always need a reason to evict their tenants - they may just have to follow the correct procedure. This means that for many private tenants, succession rights are not enforceable in reality. Negotiating with the landlord to get a new tenancy may provide more security than trying to take over the tenancy by succession.

There are exceptions, however. You should get advice if the deceased had either of the following types of tenancy, as there may be complicated rules about how they can be passed on:

Assured tenancies can normally be passed on to a spouse, civil partner or cohabiting partner if the property is that person's only or main home and there has been no previous succession.

If no one is entitled to succeed, or the tenancy is for a fixed term (eg one year) the tenancy can be passed on under a will or the rules of intestacy. This situation is complicated, so get advice.

Regulated tenancies can be passed on to:

• a spouse, civil partner or cohabitee, as long as s/he lived in the property at the time of the tenant's death.
• another member of the tenant's family, provided they lived in the property with the tenant for at least two years before the tenant's death and there is no spouse, civil partner or partner who is entitled to succeed.

If the successor is the spouse or partner, and there has not been a previous succession, the tenancy remains a regulated tenancy. If it passes to another member of the tenant's family, or is a second succession, it becomes assured. Regulated tenancies can only be passed on twice in very limited circumstances.

Succeeding to other types of tenancy

If you have a type of tenancy that is not covered in the sections above, you should get advice from a housing specialist to find out about your rights. You can contact Shelter's free helpline on 0808 800 4444 (lines are open 8am to midnight), request email advice, or use our directory to find an adviser in your area.

If more than one person is entitled to succeed

If more than one person is entitled to succeed, you may need to get advice to find out where you stand. Joint succession is not normally allowed, so only one person will be able to take over the tenancy. In virtually all cases, the spouse or registered civil partner of the person who died will get priority.

Alternatively, you may be able to come to a mutual agreement about who will succeed to the tenancy. If this is not possible, the landlord will normally decide for you, or, if the tenancy is regulated, the county court must decide.

If the person who died took on the tenancy by succession

Succession can normally only happen once, unless your tenancy agreement allows for more than one succession. So if the person who has died took on the tenancy by succession it can't normally be passed on again in the same way.

However, there are exceptions and it is always worth contacting an adviser to check the facts. The law is very complicated and what happened in the past may not actually count as a succession in the eyes of the law.

If you have no succession rights

If you don't have an automatic right to take over the tenancy but would like to remain, your landlord may consider granting a new tenancy in your name. Speak to the landlord directly, but be aware that they are not required to grant you a new tenancy. An adviser may be able to help you negotiate with your landlord to increase your chances.

Similarly, if no one is entitled to succeed, it may be possible for the tenancy to be passed on through the deceased person's will or by the rules of intestacy. However, in most cases, the landlord will be able to evict the person(s) who stay on by following the correct legal procedure.

It's is important to be realistic, however. In a worst case scenario, you may have no choice but to find somewhere else to live. Contact an adviser if you think you will have problems finding somewhere suitable that you can afford. If you have nowhere to go, an adviser can also check whether you are entitled to help from the council. Use our free online assessment to get an idea of the help that might be available if you make a homelessness application.

If no one is going to succeed

If no one is eligible to (or wants to) take over the tenancy by succession, it is very important that you formally end the tenancy. You should get advice first, however, to make absolutely certain that no one has succession rights. Don't take your landlords word for it as the rules are complicated and landlords sometimes get this wrong.

The reason that you need to formally end the tenancy is because the estate of the person who died will be legally liable for paying the rent until this has been done. Surviving family members could be left with a large amount of arrears to pay if the tenancy is not ended properly. Get advice if you need help with this.