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Succession: Secure and flexible tenancies

This content applies to England

Succession rules for secure tenancies .

When a secure tenant dies the tenancy can be passed on by succession. The rules for succession to Flexible tenancies are broadly the same as for periodic secure tenancies, but where there are differences this is indicated on the page.

Persons entitled to succeed

Who can succeed to the tenancy depends upon when the tenancy started:

Tenancy began before 1 April 2012

The deceased tenant's spouse or civil partner, or another member of the deceased tenant's family (which includes a cohabitee) can succeed.[1] Where a tenancy agreement allows for additional people to be successors, this would usually operate as an allocation of a new tenancy, and will carry further rights of succession on the death of a successor.

Tenancy began on or after 1 April 2012

Succession is limited to the deceased tenant's spouse/civil partner or cohabitee unless the tenancy agreement expressly allows for someone else to succeed.[2] This could be someone who is not a member of the deceased's family, such as a carer. Where a succession occurs as a result of rights provided for in the tenancy agreement it will operate as a statutory succession, and there will be no further rights of succession.

Cohabitees

Cohabitees in this context means a couple who are living together as if married or as if civil partners. Whether a 'couple' meet this criteria will depend upon the facts in each individual situation.[3]

An islamic marriage conducted in the UK under Sharia law is not recognised as a valid marriage in the UK. Normally the couple will be treated as cohabitees, however where a couple had separated, though still lived in the same property, the non-tenant could not succeed as the surviving spouse.[4]

Members of the family

'Member(s) of the family' are defined as: cohabitees, parents, grandparents, children, grandchildren, siblings, uncles, aunts, nephews and nieces.[5] Step-relations, half-relations, relations by marriage and illegitimate children are also included in the definition as long as the relationship subsisted at the time of the succession,[6] but foster children are not.[7]

Member of the family aged under 18

Where a secure tenant dies (and there has been no previous succession) leaving only a child who resided with her/him for at least the 12-month period before the death, a landlord must recognise the child as having succeeded to the secure tenancy. An adult, either a relative or professional (eg a social worker), will have to hold the legal tenancy on trust until the child is 18.[8] See the page Tenancies for minors for more detailed information on children's ability to hold a tenancy.

Essential conditions for succession

To succeed to a secure or flexible tenancy the successor must have been occupying the dwelling as their 'only or principal home' at the time of the tenant's death. A temporary absence from the dwelling at the time of death or exclusion under a court order, for example by virtue of an order made under the Family Law Act 1996, does not preclude the condition from being satisfied.

For the purpose of succession to secure tenancies created before 1 April 2012 only , a cohabitee or a member of the tenant's family must also have been residing with the tenant for at least 12 months prior to the death of the tenant.[9] The 12 month period could be in any property in which the tenant was living (as any type of occupier) if they moved home in the year before s/he died.[10] 'Residing with' means making a home with the tenant, ie more than staying with her/him for a period.[11] Any interference with a cohabitee's rights under Articles 8 and 14 of the ECHR as a result of the 12-month requirement has been held to be justified.[12]

Joint tenants

Where a joint tenant dies, the surviving joint tenant(s) will succeed to the secure tenancy under the common law rules of 'survivorship'. This is not a statutory succession but counts as such when determining if there is any further right to succeed to a tenancy.[13]

Whenever there is a joint secure tenancy, there cannot be statutory succession to a person who would otherwise qualify to succeed upon the death of a secure tenant (see 'Persons entitled to succeed' above).[14] The tenancy will always pass to the surviving joint tenant(s).

If the surviving tenant (or one of the surviving joint tenants) does not occupy the property as her/his only or principal home at the time of the other joint tenant's death, s/he will not meet the 'tenant condition' and the tenancy will cease to be secure. However, s/he can revive her/his secure status by meeting the 'tenant condition' at any time before the expiry of a notice to quit served by the landlord.[15]

Where a married couple were joint secure tenants and the couple subsequently separated, leaving the mother and daughter in the property, the daughter was not entitled to succeed to the secure tenancy following the death of her mother as the tenancy had vested in the father by virtue of survivorship (who then lost his secure status as he was not resident).[16]

Only one succession

There cannot be more than one succession to a secure tenancy unless the tenancy agreement allows for it.

For tenancies that started on or after 1 April 2012, an express term of the tenancy agreement that there can be more than one succession will give rise to additional statutory successions.[17] For tenancies that started before that date, a contractual term allowing additional successions will give rise to a 'non-statutory' or 'discretionary' succession - see 'Non-statutory succession' below.

It has been argued unsuccessfully that the rule allowing only one succession unlawfully discriminates:[18]

  • against a child of joint tenants who will not be allowed to succeed because one tenant has survived to the tenancy (see above) compared with a child of a sole tenant who can succeed (assuming no previous succession)
  • against another 'member of the family' of a married sole tenant, who cannot succeed to the tenancy because her/his spouse has done so, compared with another member of the family of an unmarried sole tenant

The ‘death-divorce dichotomy’

The statutory succession regime under the Housing Act 1985 differentiates between children of divorced joint tenants and children of deceased joint tenants:

  • a child residing with a divorced parent who became a sole tenant when the previously joint tenancy was judicially assigned to them on divorce/dissolution of civil partnership will be able to succeed to the tenancy when their parent dies, because judicial assignment in these circumstances does not count as previous succession, unless the former tenant was a successor[19]
  • a child residing with a parent who became a sole tenant by way of survivorship on the death of the other joint tenant will not be able to succeed to the tenancy when their parent dies (survivorship counts as previous succession)

This has been referred to as the ‘death -divorce dichotomy’. The Court of Appeal held that this regime could not be regarded as discrimination on the grounds of ‘other status’ pursuant to Article 14 of the European Convention on Human Rights (ECHR), read in conjunction with Article 8 ECHR and that there was no indirect discrimination against women (the appeal was brought by a child whose mother became a sole tenant by way of survivorship to a pre-1 April 2012 secure tenancy on the death of her husband).[20]

How succession works

The mechanism for succession differs depending on whether the tenancy is periodic or fixed term (including flexible). Note that a joint tenancy, whether periodic or fixed term, vests in the remaining joint tenant(s) by 'survivorship', not by succession (see above).

Periodic

A sole periodic secure tenancy 'vests' automatically in the successor.[21] This is referred to as succession 'by operation of law'. The landlord does not need to 'grant' the tenancy to the successor.

Fixed term

In contrast, a sole fixed term secure or flexible tenancy does not vest automatically in the successor. The deceased's tenancy can be passed on to another in the course of administering the deceased's estate. It will lose secure status on being disposed of in the administration of the estate unless it is vested or disposed of:[22]

  • in accordance with a court order made in accordance with divorce or dissolution of a civil partnership, or under the Children Act 1989
  • to a person qualified to succeed.

A tenancy that loses secure status as a result of a disposal outside of the circumstances outlined in the two bullet points above cannot subsequently regain its security.

As such, there may be unintended consequences if a fixed-term/flexible tenant does not make a will. For example, an estranged wife may inherit her deceased's husband's tenancy under the rules of intestacy (ie where there is no will), taking precedence over a person would otherwise be qualified to succeed (for example, a cohabitee). In this example, the estranged wife would succeed only to a non-secure tenancy because she does not meet the tenant condition of residing in the property as her only or principal home, and the cohabitee would be left with nothing.

A flexible tenant may be advised to seek advice on making a will in order to ensure their tenancy is disposed of in accordance with their wishes. See also 'Where the tenant leaves no will' below.

What counts as a succession

In certain circumstances, a succession is deemed to have occurred,[23] therefore barring a further succession, unless the tenancy agreement allows for more than one succession to take place (see above):

  • ‘survivorship’ – where a joint tenant becomes a sole tenant on death of the other joint tenant
  • the current tenant was her/himself a statutory successor
  • the current tenant became the tenant because the tenancy was assigned to her/him as a potential successor. Assignment by way of mutual exchange does not count as succession, however if the tenant was a successor before the mutual exchange took place, s/he will remain a successor in her/his new property (see the page Assignment: Secure and flexible tenancies for more details).
  • the current tenant was assigned the tenancy by a court order in the course of proceedings relating to a divorce/dissolution of civil partnership and the original tenant was a successor. Please, note that only judicial assignments made under the Matrimonial Causes Act 1973, the Matrimonial and Family Proceedings Act 1984 and the Civil Partnership Act 2004 are excluded from being treated as succession, unless the other spouse/civil partner was a successor.[24] See the section Relationship breakdown for further information about assignments and transfers of tenancies following a relationship breakdown.
  • when the tenant was granted a new secure tenancy of the same or another property by the same landlord, and it commenced within six months of the determination of the earlier tenancy, and that tenant was a successor under her/his previous tenancy. This point will be particularly pertinent where a landlord had obtained possession of the previous tenancy under ground 15A (for more information see the section Grounds for possession: Secure tenancies)
  • a periodic tenancy that arose on expiry of a fixed term and was originally held by another person or by the tenant jointly with another person.

Where more than one person qualifies to succeed

Joint succession is not allowed.

The rules governing who can succeed to the tenancy where there is more than one potential successor depends on when the tenancy began:

Tenancy began before 1 April 2012

The tenant's spouse or civil partner will always have priority if s/he was occupying the dwelling as her/his 'only or principal home' at the time of the tenant's death. Where there is no such successor, family members (including cohabitees) who are entitled to succeed may agree the succession among themselves. If they cannot agree, the landlord can decide.[25]

Tenancy began on or after 1 April 2012

The tenant's spouse, civil partner or cohabitee will always have priority if s/he was occupying the dwelling as her/his 'only or principal home' at the time of the tenant's death. If more than one person meets this criterion, the potential successors may agree among themselves who is to succeed. The same applies where there is no spouse, civil partner or cohabitee but there is more than one other person entitled to succeed under the terms of the tenancy agreement - they may agree a successor among themselves. In either case, if there is no agreement, the landlord can decide.[26]

Where no one qualifies to succeed

Where there is no qualifying successor:

A periodic tenancy will continue on a non-secure basis and vest in the estate of the deceased person.[27] It will then be disposed of in the administration of the estate. Usually it will be surrendered to the landlord, or the landlord will seek possession.

A fixed-term/flexible tenancy will continue to be secure until it is disposed of in the course of administering the deceased's estate.[28] As long as there are no proceedings pending for a property transfer under family law, the landlord can apply to the court for possession.

Before issuing proceedings, the landlord must serve four weeks' notice to quit on the executor or administrator of the tenant's estate stating that possession is required. The estate will be liable for payments of rent until the tenancy is ended.

Where the tenant leaves no will

If the tenant did not leave a will, and there has been no lawful succession, the tenancy will vest in the Public Trustee (unless and until the deceased tenant's next of kin takes out a grant of letters of administration to the estate).

This means that, to terminate the tenancy and evict any occupiers who are not entitled to succeed, the landlord must serve a valid notice to quit on the Public Trustee. The landlord can then take possession proceedings against the occupiers.

Ground for possession against successor

Ground 15A is a discretionary ground that allows a landlord to seek possession of a property from a successor where it is being under-occupied.[29]

Ground 15A can only be used if the successor is not the spouse/civil partner of the original tenant (it is unclear if ground 15A can be used where the successor was the deceased tenant's co-habitee). The court must also be satisfied that suitable alternative accommodation will be available to the successor and her/his household.

If the court awards possession and the tenant accepts the offer of alternative accommodation, the tenant is still defined as a successor in the new property.[30]

For more information see the page Discretionary grounds plus suitable accommodation: Secure tenancies

Death before 3 October 1980

Secure tenancies, and therefore the right of succession to secure tenancies, did not exist prior to 3 October 1980.[31] Before that date, after the death of a tenant it was common for the landlord to create a new tenancy for a member of the tenant's family. Consequently, if the new tenant dies (whether pre or post-1980), then a successor is not barred from succeeding to the tenancy on the grounds that a previous succession has already taken place.[32]

'Non-statutory' succession

Landlords may offer a 'non-statutory succession' in some circumstances where an occupier has been living with a tenant but has no statutory right to succeed, and no contractual right to succeed for secure (or PRPSH assured) tenancies created on or after 1 April 2012 (see above). Non-statutory (or 'discretionary') succession rights may be found in tenancy agreements created before 1 April 2012, or in landlords' tenancy policies.

Most non-statutory succession will in fact be an allocation, and governed by the rules of the authority's allocations policy, eg on the size of property that will be offered.[33] However, it is possible that a landlord may require the deceased's estate to assign the deceased's tenancy to a successor under a discretionary policy.

See the page What is an allocation?, and the section Allocation of housing by local authorities for more information on the allocation of social housing.

Non-statutory succession is normally restricted, eg to carers and household members who had been living with the tenant for 12 months before the tenant died.

Social landlords must publish their policies on granting non-statutory succession rights. See the page Regulatory standards ('Tenancy standard') in the section on the regulation of social housing providers. A policy on non-statutory succession may be challenged on public law or human rights grounds if it is, for example, directly or indirectly discriminatory.

Assignment to potential successor

Secure (and flexible) tenants have the right to assign their tenancy to a person who would be qualified to succeed to the tenancy upon their death. This may be an appropriate choice for a tenant for a number of reasons:

  • it could prevent a dispute arising between two potential successors on the tenant's death as the tenant could choose the person to whom the tenancy is to be transferred while s/he is alive
  • it could prevent the local authority from obtaining possession under ground 15A for under-occupation (see below 'Ground for possession against successor'). This is because this ground for possession can only be used where a person has succeeded to the tenancy upon the death of the tenant, and not where the tenancy has been assigned during the tenant's lifetime.

It is not usually advisable to assign a tenancy where the tenancy agreement contains an absolute prohibition against assignment, unless the local authority is willing to consent to an assignment and thereby waive the breach of the tenancy agreement. If the tenancy is assigned without prior consent, it is possible that the assignee could be subject to possession action for breach of the terms of the tenancy, although this is a discretionary ground.[34]

For more information about rules of assignment, see the section on Assignment.

Wales

The information on this page applies only to England. Go to Shelter Cymru for information relating to Wales.

[1] s.87 Housing Act 1985, as in force from 1 April 1986 to 31 March 2012, pre-Localism Act 2012 amendments.

[2] s.86A Housing Act 1985, as inserted by s.160 Localism Act 2011; s.160(6) Localism Act 2011.

[3] s.113(1)(a) Housing Act 1985 and s.86A Housing Act 1985, as inserted by s.160 Localism Act 2011; Amicus Horizon Ltd v (1) Estate of Mabbott (2) Brand [2012] EWCA Civ 895; JP v Secretary of State for Work and Pensions (IS) [2014] UKUT 0017 (AAC).

[4] Northumberland Durham Property Trust Ltd v Ouaha [2014] EWCA Civ 571.

[5] s.113(1) Housing Act 1985.

[6] s.113(2) Housing Act 1985, as amended by para 27, Sch.8 Civil Partnership Act 2004.

[7] Sheffield CC v (1) The Personal Representatives of Wall (2) Wall (3) Ingham (4) Butler [2010] EWCA Civ 922.

[8] Kingston upon Thames LBC v Prince (1999) 31 HLR 794, CA.

[9] Camden LBC v Goldenberg (1996) 28 HLR 727, CA; Freeman v London Borough of Islington [2009] EWCA Civ 536; Evans v Brent LBC [2012] EWHC 4443 (QB).

[10] Waltham Forest LBC v Thomas [1992] 2 All ER 244, (1992) 24 HLR 622, HL.

[11] Freeman v London Borough of Islington [2009] EWCA Civ 536.

[12] Turley v (1) Wandsworth LBC (2) Secretary of State for Communities and Local Government [2017] EWCA Civ 189.

[13] s.88(1)(b) Housing Act 1985.

[14] Hickin v Solihull MBC [2012] UKSC 39.

[15] Hickin v Solihull MBC [2012] UKSC 39; Islington LBC v Boyle [2011] EWCA Civ 1450.

[16] Solihull Metropolitan Borough Council v Hickin [2010] EWCA Civ 868.

[17] s.86A Housing Act 1985, as inserted by s.160(1) Localism Act 2011.

[18] R (Gangera) v Hounslow LBC [2003] EWHC 794 Admin.

[19] ss.88(2) and 88(2A) Housing Act 1985.

[20] Simawi v Haringey LBC [2019] EWCA Civ 1770.

[21] s.89(1A) Housing Act 1985.

[22] s.90 Housing Act 1985.

[23] s.88 Housing Act 1985; Walker v Birmingham City Council [2007] UKHL 22.

[24] Judicial assignments made under: section 24 of the Matrimonial Causes Act 1973, section 17(1) of the Matrimonial and Family Proceedings Act 1984, Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7 of the Civil Partnership Act 2004, pursuant to sections 88(2) and 88(2A) Housing Act 1985.

[25] Epping Forest DC v Pomphrett and Pomphrett (1990) 22 HLR 475.

[26] s.88 Housing Act 1985.

[27] s.89(2) Housing Act 1985, as in force from 1 April 1986 to 31 March 2012, pre-Localism Act 2012 amendments.

[28] s.86A(2), (6) and (7) Housing Act 1985, as inserted by s.160 Localism Act 2011.

[29] ss.89(3)-(4) and 90 Housing Act 1985.

[30] s.90 Housing Act 1985, as amended by s.162 Localism Act 2011.

[31] ground 15A, Sch.2 Housing Act 1985, as inserted by s.162(2) Localism Act 2011.

[32] s.88(4) Housing Act 1985.

[33] see paras 23-24 Holley v Hillingdon LBC [2016] EWCA Civ 1052.

[34] ground 2, Sch.2, Housing Act 1985; and Peabody Donation Fund v Higgins [1983] 3 All ER 122, (1983) 10 HLR 82, CA.

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