Assured and assured shorthold tenancy succession

Succession is when someone inherits a tenancy after the tenant dies.

Succession usually happens automatically if certain conditions are met. Someone qualified to succeed always inherits the tenancy even if the deceased tenant asked for the tenancy to pass to someone else in their will.

Assured and assured shorthold tenancies

An assured tenancy is a lifetime tenancy. This means that a right to succeed can be very important for the deceased tenant's family. Most housing association tenants and some private tenants have assured tenancies.

An assured shorthold tenancy can be ended by the landlord serving a valid no-fault section 21 notice. This means the benefit of succeeding to a tenancy is less significant. Most private tenants and some housing association tenants have assured shorthold tenancies.

Find out more about assured tenancies and assured shorthold tenancies.

When a joint tenant dies, the surviving joint tenant succeeds to the tenancy automatically by the common law rule of survivorship.[1]

The tenancy always passes to the surviving joint tenant. Another person cannot succeed to a joint tenancy, even if they would qualify to succeed to a sole tenancy.[2]

When the surviving joint tenant is no longer resident

If the other tenant is not resident when the resident joint tenant dies, the tenancy loses its security. This means the landlord can serve a notice to quit to end the tenancy.

A non-resident tenant might be able to regain the security of the tenancy by moving back into the property before the notice to quit expires.[3]

A periodic tenancy normally runs from month to month, or week to week and does not have a fixed end date. A periodic tenancy can continue indefinitely.

When a sole assured or assured shorthold tenant dies the tenancy automatically passes to the tenant's spouse, civil partner or cohabitee. The spouse, civil partner or cohabitee must occupy the property as their only or principal home at the time of the tenant's death.[4]

Where there is more than one person entitled to succeed, they must agree who will succeed to the tenancy. Where they are unable to agree, the County Court will decide.[5]

Who is a cohabitee?

Cohabitees are a couple who live together as if married or civil partners. Whether a couple are classed as cohabitees will depend upon the facts in each individual situation.[6]

An Islamic marriage conducted in the UK under Sharia law is not recognised as a valid marriage under UK law.[7] A couple living together as husband and wife will be treated as cohabitees.[8]

No spouse, civil partner or cohabitee entitled to succeed

If there is no spouse, civil partner or cohabitee who is entitled to succeed to the tenancy, another person might be entitled to succeed if there is a clause in the tenancy agreement that allows it.[9]

Any clause is normally conditional on the potential successor meeting requirements. For example, having lived in the property as their only or principal home for a specified length of time.

For tenancies which began before 1 April 2012, these additional succession rights take effect as the grant of a new tenancy, not as a statutory succession. This means there is an additional right of succession on the death of the successor tenant.

For tenancies which began after 1 April 2012, any additional right of succession provided for in the agreement will take effect as a statutory succession. This means there will be no further rights to succeed on the death of the successor tenant.

Member of the family aged under 18

Where an assured tenant dies leaving only their minor child or children in occupation at the time of their death, it is possible for the minor to succeed if the tenancy agreement allows for family members to succeed.[10]

An adult must hold the legal tenancy on trust until the child is 18. Find out more about tenancies for children and young people.

A fixed term tenancy is a tenancy which has a set end date. For example, a tenancy might be granted for six or 12 months. When the fixed term ends but the tenant remains resident in the property, the tenancy becomes a periodic tenancy.

The rules for succession to a fixed term assured or assured shorthold tenancy vary depending on the length of the tenancy.

Fixed term tenancies under two years

There is no right of succession to a sole fixed term assured or assured shorthold tenancy which is less than two years.[11]

Fixed term housing association tenancies of two years or more

There can be a succession to a fixed term tenancy which is:[12]

• granted by a Private Registered Provider of Social Housing (PRPSH)

• for a term of at least two years

The rules are the same as for periodic assured or assured shorthold tenancies.

A PRPSH is a provider of social housing, sometimes called a housing association.

There can normally only be one succession to a periodic assured or assured shorthold tenancy, unless the tenancy agreement says a further succession is possible.

Checking whether the deceased tenant was a successor

The deceased tenant was a successor if they:[13]

• succeeded to the tenancy, or to an earlier tenancy of the same premises

• were the survivor to a joint tenancy

• became a tenant by will or under the intestacy rules

Assignment by mutual exchange does not count as succession.

A statutory succession happens automatically.

The landlord does not need to give permission, but in some cases the successor will need to give the landlord supporting information to prove they meet the necessary conditions. For example, a marriage certificate proves the successor was the spouse of the deceased tenant.

Evidence of residence

Some potential successors must have resided with the deceased tenant before the tenant's death. A landlord might ask for proof of residence to establish they have a right to succeed.

A potential successor could provide:

• bank statements

• wage slips or benefit letters

• named bills addressed to the property

The potential successor could collect witness statements from neighbours and friends. They might also have evidence from doctors, teachers, employers, or government departments.

A landlord might state they only accept specific forms of evidence, but they should consider any relevant evidence which confirms a person's residence.

Evidence of receiving benefits

When a tenant claims housing benefit or the housing element of universal credit they must declare who occupies the premises.

If a tenant has declared they live alone for benefits purposes, a landlord could use this as evidence that the potential successor was not resident in the property. For example, if a tenant claimed benefits as a single person, this might be evidence that a cohabiting couple were not living as husband and wife.[14]

Evidence relating to benefits is important but not always decisive, and other forms of proof could establish residence.

A successor who qualifies for housing benefit or universal credit should make a claim immediately, even if their right to succeed is disputed by the landlord. Once the right to succeed is established, the benefit should be paid if the successor is otherwise eligible.

If the landlord refuses the succession

A landlord might not agree the occupier meets the conditions for succession.

A landlord could serve a notice to quit on the basis the tenancy lost its security after the tenant's death. An occupier could defend the proceedings and ask the judge to decide whether a succession has happened.

The occupier might be eligible for legal aid help. Find out more about legal aid.

Alternatively, an occupier can issue a claim for a declaration from the court confirming they are a successor.

If no one meets the conditions for succession, or the deceased tenant had succeeded to the tenancy, succession cannot happen.

The tenancy counts as property, and automatically vests to the tenant's personal representatives. Vesting means that the tenancy automatically passes on the tenant's death.

Discretionary succession

A landlord might allow for someone who is not entitled to statutory succession to succeed on discretionary grounds. For example, another family member or the deceased tenant's carer.

Social landlords must publish their policy on discretionary successions. The policy could be challenged on public law or human rights grounds, for example, if it is discriminatory.

Ending the tenancy

The tenancy continues until it is ended in the normal manner. The landlord can end the tenancy by serving notice before issuing possession proceedings. The tenant's personal representative can give the notice required by the tenancy agreement.

In practice, where no one wants to remain in occupation, the tenancy is often terminated by mutual consent.

Landlord seeks possession

Where there is no successor, an assured periodic tenancy may be passed on by will or under the intestacy rules.

A landlord can obtain possession on the death of a tenant using ground 7 if there is no successor.

The landlord must start proceedings within 12 months of either:[15]

• the death of the tenant

• the date upon which the landlord became aware of the death of the tenant

Ground 7 is a mandatory ground. The landlord does not have to satisfy any other condition to gain possession.

Rent payments

The estate is liable for payments of rent until the tenancy is ended.

The deceased tenant's estate is liable for the rent until the tenancy is formally ended or passed on to the beneficiary of the estate. The rent is a debt owed by the deceased person's estate.

When a person remains in occupation after the expiry of a notice to quit, a landlord can claim money from them for use and occupation of the premises pending possession proceedings. These payments are often known as mesne profits. They do not create a new tenancy. A notice of rent increase on the occupier might create a new tenancy where it can be shown this was the intention of both the landlord and tenant.[16]

Probate and intestacy

All the possessions and property of a person who dies are known as their estate.

The tenancy counts as property, and automatically vests to the tenant's personal representatives. Vesting means that the tenancy automatically passes on the tenant's death.

The tenancy vests according to the instructions in a will, or if there is no will, according to the rules of intestacy.

If there is a will, it usually names one or more executor, who has responsibility for dealing with the estate according to the instructions in the will.

An inheritor under a will or intestacy who takes up residence in the dwelling as their only principal home becomes a tenant. They are likely to be subject to possession action under the mandatory ground 7.

A fixed term tenancy where the property is no longer occupied ends when the fixed term expires. No periodic tenancy will arise if there is no one resident in the property when the fixed term ends, and an inheritor who moves in after this date will not become a tenant.

Intestacy

Dying without a will is also known as dying intestate. If there is no will, the property initially vests in the Public Trustee until such time as legal authority is obtained.

When a person dies without a valid will, their estate passes to family members in a set order.

The estate passes to a spouse or civil partner if there is one. If there is no spouse or civil partner, the person's children, grandchildren and other relatives might be able to inherit. Find out more about the rules of intestacy via Citizens Advice.

Use this table to find out who has a statutory right to succeed to a sole assured or assured shorthold tenancy when the tenant dies.