Regulated tenancy succession

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

For most regulated tenants, there can only be one succession. If the deceased tenant succeeded to the tenancy themselves, there cannot normally be another succession.

Succession 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 a beneficiary in their will.[1]

Stages of a regulated tenancy

A regulated tenancy has two stages:

• the initial contractual tenancy, which can be for a fixed term or periodic

• the statutory periodic tenancy that starts when the contractual tenancy ends

Some succession rights are different during the contractual and statutory stages. Landlords have not been able to grant new regulated tenancies since 1989, so in practice few tenancies will still be contractual and most regulated tenants will have statutory tenancies.

Find out more about regulated tenancies.

If the tenant moved out before they died

A statutory tenancy loses its security if neither the tenant, or their spouse or civil partner, occupies the property as their residence.[2] If the tenant is not residing in the property when they die there can be no succession even when a person left in occupation would qualify to succeed.

Existing rent arrears or possession proceedings

A tenant might die owing rent or when their tenancy is subject to possession proceedings.

Someone who inherits a tenancy is not usually liable for the previous tenant's rent arrears. The tenancy might remain subject to possession proceedings such as a suspended order.

Find out more about rent arrears and possession after a tenant's death.

When a joint tenant dies, the surviving joint tenant succeeds to the tenancy automatically by the common law rule of survivorship.[3]

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.[4]

If the surviving tenant has moved out

For a statutory tenancy, the tenancy ceases to exist on the death of the other joint tenant if the surviving tenant does not reside in the premises.

When a sole tenant dies the tenancy automatically passes to a person qualified to succeed to it. This is a statutory succession.

The statutory succession provisions apply to contractual and statutory tenancies.[5]

Tenant died on or after 15 January 1989

The deceased tenant's spouse, civil partner, or cohabitee succeeds to the tenancy if they occupied the property at the time of the tenant's death.[6]

The spouse, civil partner or cohabitee becomes a statutory regulated tenant.

If there is no spouse, civil partner, or cohabitee, another family member can succeed if they lived with the tenant for at least two years prior to the tenant's death. If the tenant died between 15 January 1989 and 15 July 1990, the family member must have resided in the property from 15 July 1988 until the tenant's death.[7]

Only one person can inherit a tenancy. If more than one member of the family qualifies, the family can decide who succeeds. If they cannot decide, the County Court can decide for them.[8]

The family member becomes an assured tenant. This gives them different rights to the original regulated tenant. For example, the landlord can charge a market rent. There can be no further succession. Find out more about assured tenancies.

Tenant died before 15 January 1989

A spouse or cohabitee residing with the tenant at the time of their death could succeed. If there was no spouse or cohabitee, a member of the tenant's family could succeed if they had lived with the tenant for six months.

If the tenant died before 28 November 1980 only a wife of the deceased tenant could succeed. If there was no wife, a member of the family could succeed. A family member included a husband or cohabitee.[9]

Someone who succeeded before 15 January 1989 succeeded to a statutory regulated tenancy.

Who is a cohabitee?

Cohabitees are couples who live together as if they are married or civil partners. Whether a couple meets these criteria depends on the facts of each case.[10]

An Islamic marriage conducted in the UK under Sharia law is not recognised as a valid marriage in the UK.[11] The couple is normally treated as cohabitees. When a couple separates the non-tenant cannot succeed as a surviving spouse even if they still live in the property.[12]

Who is a member of the family?

The definition of a family member depends on case law.

The courts might find someone qualifies to succeed if they are not related to the tenant but lived as a member of the family.

In some cases, a sole regulated tenancy can be succeeded to twice.

If the deceased tenant had already inherited a sole tenancy as the first successor, a member of their family might be able to inherit the tenancy again.

First successor died on or after 15 January 1989

A regulated tenancy can be passed on twice if the first successor was a spouse, civil partner, or cohabitee.[13] There will be a second succession if:

• the first successor was a statutory tenant

• the second successor is a family member of both the original tenant and first successor

• the second successor lived in the property for the two years immediately before the first successor's death

If the first successor died before 15 July 1991, the second successor had to show they lived in the property from 15 July 1989.[14]

The second successor becomes an assured tenant. This is a new tenancy, and there can be no further successions.[15]

For example, a sole regulated tenant died in 1996. His wife succeeded. Her adult son has lived with her for the last five years. As the original succession was to a spouse, the tenancy could be inherited by the couple's son when the successor dies. The son will inherit an assured tenancy with no further succession rights.

First successor died before 15 January 1989

A second succession was possible if the second successor was either:

• the spouse of the first successor

• a member of the first successor's family who lived in the property for the six months immediately before the first successor's death

The second successor inherited a statutory tenancy.[16]

Survivorship to a joint tenancy

When a joint tenant dies, the surviving tenant takes over the tenancy automatically by survivorship. This does not count as a statutory succession to a regulated tenancy. This is a different rule to some other tenancy types where survivorship counts as a succession.

For example, when a joint tenant becomes a sole tenant by survivorship the tenancy could still be succeeded to twice where the conditions are met.

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.[17]

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.

A successor's security of tenure depends on whether they succeeded to a statutory regulated tenancy or an assured tenancy.

Succession to a statutory regulated tenancy

There are no specific grounds for possession against a successor to a regulated tenancy. A landlord can seek possession by following the possession proceedings process using grounds for a regulated tenancy.

The landlord must serve a valid notice and prove a ground for possession.

Find out more about possession of a regulated tenancy.

Succession to an assured tenancy

A landlord can seek possession following the possession proceedings process and can use the grounds for possession against assured tenants.[18]

Find out more about possession of an assured tenancy.

Where no one is entitled to succeed to a regulated tenancy, the position depends on whether the tenancy is statutory or contractual.

Statutory regulated tenancy

A statutory tenancy is a personal right to occupy. It ends upon death if there is no statutory succession.[19] It cannot be left to someone through a deceased tenant's will.[20]

A landlord can peaceably take possession of the property without a court order.

Contractual regulated tenancy

A contractual tenancy continues after a tenant's death and is passed on under the tenant's will. If there is no will, it passes under the intestacy rules. In most cases this means the tenancy goes to the tenant's next of kin, such as their spouse, civil partner, or child.

The tenancy vests in the Public Trustee. The potential inheritor, or another person allowed to apply, must apply for letters of administration. The tenancy then vests in the administrator. The administrator retains the tenancy if they are the potential inheritor, otherwise they must assign the tenancy to the potential inheritor.

The inheritor becomes a statutory regulated tenant if they reside in the property and the landlord ends the contractual tenancy.

Find out more about regulated tenancies.

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