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Succession to periodic assured tenancies

This content applies to England

The rules for succession to periodic assured tenancies.

Statutory succession

The deceased tenant's spouse/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 as to who will succeed to the tenancy, otherwise the county court will decide.[2]

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 under UK law,[4] and the couple when living together as husband and wife will be treated as cohabitees.[5]

Housing association/PRPSH tenants only

For tenancies created on or after 1 April 2012, where the landlord is a private registered provider of social housing (PRPSH) and there is no spouse/civil partner/cohabitee entitled to succeed, then another person can succeed only if the tenancy agreement expressly allows for it.[6] Any additional right of succession provided for in the agreement will take effect as a statutory succession, and there will be no further rights to succeed on the death of the successor tenant.

Tenancies created before 1 April 2012 may have a clause in the tenancy agreement allowing for a succession to someone other than a spouse/civil partner/cohabitee, for example, a member of the tenant's family. Such rights will normally be conditional on the potential successor having complied with terms such as having lived in the property as her/his only or principal home for a length of time. Any such additional succession rights will take effect as the grant of a new tenancy, not as a statutory succession, and there will be a further right of succession on the death of the successor tenant.

Non-statutory succession

A PRPSH landlord may offer a discretionary 'non-statutory' succession in some circumstances where a household member or carer would not qualify under the statutory rules. See the page Secure and flexible tenants for more information.

Member of the family aged under 18

Where an assured tenant dies leaving only her/his minor child or children in occupation at the time of her/his death, it is in principle possible for the minor to succeed to the tenancy if the tenancy agreement allows for family members to succeed.[7] However, in practice this is likely to be a rare occurrence. If the succession is allowed by the tenancy agreement, it will be necessary for an adult, either a relative or professional (eg a social worker), to hold the legal tenancy on trust until the child is 18. See the page on Tenancies for minors for more detailed information on children's ability to hold a tenancy.

Only one succession

Unless the tenancy agreement allows for it, there can be no further succession if the deceased tenant:[8]

  • 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 . Where a joint tenant dies, the surviving joint tenant(s) will succeed to the assured tenancy under the common law rules of 'survivorship', and not as a result of a statutory succession. 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 an assured tenant. The tenancy will always pass to the surviving joint tenant(s).[9]

Passing tenancy on under a will or intestacy

If no one is entitled to succeed, the tenancy can be passed on under a will or the intestacy rules.

If there is no will or the will is invalid, all the tenant's property including the tenancy is dealt with according to the laws of intestacy. In most cases this means that the tenancy will pass on to the next of kin of the deceased, who could 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 and 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 assign the tenancy to the inheritor.

If the inheritor takes up residence in the dwelling as her/his only principal home, s/he becomes an assured tenant, although this may be subject to possession action (see below).

Ground for possession where no successor

Where there is no successor, an assured periodic tenancy may be passed on by will or under the intestacy rules. However, the landlord may obtain possession if proceedings are brought within 12 months of the death of the tenant, or 12 months of the date upon which the landlord became aware of the death of the tenant.[10] 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) and, as the ground is mandatory, the court does not have to consider whether it is reasonable to grant an order. The ground does not apply if a spouse/civil partner or cohabitee succeeded to the tenancy under the statutory succession provisions (see above).

Ground 7 also 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 Housing Act 1988.

[2] s.17(5) Housing Act 1988.

[3] s.17(4) Housing Act 1988; Amicus Horizon Ltd v (1)Estate of Mabbott (2)Brand [2012] EWCA Civ 895.

[4] see, for example Her Majesty's Attorney General v Akhter & Anor [2020] EWCA Civ 122.

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

[6] s.17(1A) Housing Act 1988, as inserted by s.161 Localism Act 2011.

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

[8] s.17(1) and 17(2) and (1D) Housing Act 1988, as amended by s.161 Localism Act 2011.

[9] see Hickin v Solihull MBC [2012] UKSC 39.

[10] Ground 7, Sch.2 Housing Act 1988.

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