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Succession: Regulated tenancies

This content applies to England

Succession rights to regulated tenancies .

The rights to succession to regulated tenancies are governed by the Rent Act 1977. This Act was amended by the Housing Act 1988 and so successors' rights to regulated tenancies are different before and after the 1988 legislation (which came into force on 15 January 1989). Regulated tenants have the right to one or two successions depending on when the first succession took place. More information about regulated tenancies can be found in the section on Regulated (protected) tenancies.

Death on or after 15 January 1989

If the original tenant died on or after 15 January 1989, then spouses/civil partners, cohabitees and other members of the family may be able to succeed.

Spouses/civil partners and cohabitees

Spouses/civil partners and cohabitees of the tenant who lived in the property immediately before the death of the tenant succeed to a statutory protected tenancy.[1] 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.[2]

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.[3]

Other members of the family

Another member of the family can succeed if there is no spouse/civil partner or cohabitee, but s/he will become an assured tenant. The potential successor must have lived with the tenant for at least two years prior to the tenant's death. If the death took place between 15 January 1989 and 15 July 1990 the family member must show residence in the dwelling-house from 15 July 1988 until the tenant's death.[4]

For regulated tenants, unlike secure tenants, the definition of a 'member of the family' is dependent on case law, not on statutory provision. This means that in some cases the courts might find that someone who is unrelated, but has lived as a member of the family, qualifies to succeed. The courts, however, have generally been reluctant to come to this conclusion.

If there is no spouse/civil partner or cohabitee entitled to succeed, but there is more than one member of the family entitled to succeed, then the family can decide who should succeed. If there is no agreement, the county court must decide.[5]

Second succession

In some cases it is also possible for there to be a second succession. This can only happen where the first succession occurred before 15 January 1989 or, if after 15 January 1989, where the first successor was a spouse/civil partner or cohabitee.

If the first successor died on or after 15 January 1989, a second succession is possible if the first successor was a statutory tenant and the second potential successor is a member of the family of both the original tenant and the first successor. S/he must have lived with the first successor in the dwelling-house for the two years immediately preceding the first successor's death. If the first successor's death took place before 15 July 1991, the second potential successor has to show that s/he has been residing in the dwelling-house with the first successor from 15 July 1989.[6]

The second successor will be an assured tenant and the Housing Act 1988 prevents any further succession.[7]

Death before 15 January 1989

If a regulated tenant died before 15 January 1989, a spouse or cohabitee residing with the tenant at the time of her/his death was entitled to succeed. However, for a death that took place before 28 November 1980 this only applied to a wife, not to a husband or a cohabitee (but see below).

A member of the deceased tenant's family who was able to show six months' residence could only succeed if there was no spouse or cohabitee. If the death took place before 28 November 1980, this could only take place if there was no wife, and in this case a member of the family could include a husband or cohabitee.[8] The succession would have been to a statutory tenancy.

If the first successor died before 15 January 1989, a second succession was possible if the second successor was the spouse of the first successor or a member of the first successor's family who lived with the first successor in the dwelling-house in the six months immediately preceding the first successor's death. Like the first succession, the second succession was to a statutory tenancy.[9]

Where no one qualifies to succeed

Where no one is entitled to succeed to a regulated tenancy, the position depends on whether the tenancy is contractual or statutory (see the page on What is a regulated tenancy for information on whether a regulated tenancy is contractual or statutory).

As a statutory tenancy is a personal right to occupy, it ends upon death. A contractual tenancy continues and is passed on in accordance with the will of the deceased tenant or, if there is no will, according to the laws of intestacy. In most cases this means that the tenancy goes to the next of kin of the deceased. This could be the spouse, civil partner, parent, or child, but not usually a cohabiting partner.

Succession in this way 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 potential inheritor, s/he retains the tenancy, but if the administrator is some other person, the tenancy must be assigned to the potential inheritor. If the inheritor occupies the dwelling as a residence, s/he becomes a statutory tenant if the landlord ends the contractual tenancy.

Grounds for possession against successor

There are no specific grounds for possession against a successor to a regulated tenancy. However, where the succession is to an assured tenancy, grounds for possession against assured tenants can be used in addition to the mandatory grounds for possession against regulated tenants.[10]

For more information see the sections on Assured tenancies and Regulated tenancies.

[1] para 2, Sch.1 Rent Act 1977, as amended by para 13, Sch.8 Civil Partnership Act 2004; para 2, Sch.4 Housing Act 1988.

[2] Amicus Horizon Ltd v (1)Estate of Mabbott (2)Brand [2012] EWCA Civ 895.

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

[4] para 3, Sch.4 Housing Act 1988.

[5] para 3(1), Sch.1 Rent Act 1977, as amended by para 13, Sch.8 Civil Partnership Act 2004.

[6] para 2, Sch.1 Rent Act 1977 as amended by s.39 Housing Act 1988 and para 13, Sch.8 Civil Partnership Act 2004.

[7] s.17(1)(c) Housing Act 1988, as amended by para 41, Sch.8 Civil Partnership Act 2004.

[8] para 3, Sch.1, Rent Act 1977, as amended by para 13, Sch.8 Civil Partnership Act 2004.

[9] para 6, Sch.1 Rent Act 1977.

[10] Sch.2 Housing Act 1988, as amended by para 43, Sch.8 Civil Partnership Act 2004.

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