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Succession to fixed-term assured tenancies

This content applies to England

The rules for succession to fixed-term assured tenancies.

General rule

When a tenant dies during the fixed term of an assured tenancy, the tenancy passes on according to the will of the deceased tenant.

If there is no will or the will is invalid, all the tenant's belongings including the tenancy will be dealt with in accordance to the laws of intestacy. In most cases, this means that the tenancy will pass on to the next of kin of the deceased tenant, who can be her/his spouse, civil partner, parents or children, but not usually her/his cohabiting partner. This does not happen automatically. Initially, the tenancy vests in the Public Trustee; the potential inheritor (or another person allowed to apply under the law relating to the administration of estates) must apply for letters of administration. When this process is complete, the tenancy vests in the administrator. If the administrator is the inheritor, s/he retains the tenancy. If the administrator is some other person, s/he must then assign the tenancy to the inheritor.

If the inheritor takes up residence in the property as her/his only principal home before the end of the fixed term, s/he becomes an assured tenant, however, the landlord may obtain possession under ground 7 (see below). If the inheritor takes up residence after the end of the fixed term, the tenancy will have ended when the fixed term expired and no assured statutory periodic tenancy would have arisen.

PRPSH tenants

The statutory rules for succession applicable to tenants of private registered providers of social housing (PRPSH), who have fixed-term assured tenancies of at least two years, are different as set out below.

The deceased tenant's spouse or civil partner or cohabitee can succeed to the tenancy if s/he was occupying the dwelling as her/his 'only or principal home' at the time of the tenant's death.[1] Where there is more than one spouse/civil partner/cohabitee entitled to succeed, they must either agree among themselves as to who will succeed to the tenancy, otherwise the county court will decide.[2]

If there is no spouse/civil partner/cohabitee entitled to succeed, then another person can succeed to the tenancy, but only if the tenancy agreement allows for it.[3]

Unless the tenancy agreement allows for it, there cannot be a further statutory succession if the deceased tenant:

  • was a successor to the tenancy, or to an earlier tenancy of the same premises
  • became a tenant by will or under the intestacy rules, or
  • was the survivor to a joint tenancy.[4]

Ground for possession on death of tenant

Where a fixed-term assured tenancy is passed on by will or under the intestacy rules, the landlord may obtain possession if proceedings are brought within 12 months of the death of the tenant, or 12 months of the date in which the landlord became aware of the death of the tenant.[5] In such cases, the landlord does not have to satisfy any other condition to gain possession under ground 7 – death of periodic assured tenant (see the page Mandatory grounds for more information). In addition, as the ground is mandatory, the court does not have to consider whether it is reasonable to grant an order.

In the case of the death of a  fixed-term tenant of a PRPSH who has a fixed-term assured tenancy of at least two years, the tenancy cannot be passed on by will or under the intestacy rules where the law allows for a successor to succeed to the tenancy (see 'PRPSH tenants' above).[6]

Ground 7 specifies that acceptance of rent after the death of the former tenant will not be regarded as the creation of a new tenancy, unless the landlord has agreed in writing to any change in the terms of the tenancy, such as the amount of rent.

[1] s.17(1B) Housing Act 1988, as amended by s.161 Localism Act 2011.

[2] s.17(5) Housing Act 1988, as amended by s.161 Localism Act 2011.

[3] s.17(1B) Housing Act 1988, as amended by s.161 Localism Act 2011.

[5] Ground 7, Sch.2 Housing Act 1988, as amended by s.162(5) Localism Act 2011.

[6] s.17(1B)(c) and (1C)(e) Housing Act 1988, as amended by s.161 Localism Act 2011.

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