Rent arrears and possession after a tenant's death
Who is liable for outstanding rent arrears when a tenant dies and the effect of the tenant's death on possession proceedings.
Who is liable for existing rent arrears when a tenant dies?
A tenant might die owing rent arrears. Liability for these arrears passes to their estate.
Another person might inherit the tenancy when the tenant dies. For example, a tenant's spouse, civil partner, or family member. This is called succession.
A successor is not usually liable to pay the deceased tenant's rent arrears. The successor can in practice be liable to pay if the tenancy is subject to a possession order suspended on repayment terms.
Find out more about succession to a tenancy.
Death of joint tenant
Where a joint tenant dies the surviving joint tenant automatically becomes the sole tenant. This is called survivorship.
Joint tenants are jointly and severally liable for tenancy obligations. The surviving tenant remains liable for any arrears accrued before the death of the other joint tenant.
Succession to a sole tenancy
A successor is not liable for any rent arrears owed by the original tenant at the time of their death.[1] Arrears cannot carry over to a successor's rent account.
Where the tenancy is subject to a suspended possession order, the successor can lose their home if they cease to pay arrears. For example, where the tenancy is subject to a suspended order on terms of monthly payments towards arrears. The order continues to be in effect and the successor must comply with the order.[2]
If the successor fails to comply with the order, the landlord can issue new proceedings against the successor or apply to court to add the successor as a party to the original proceedings. [3] If the court adds the successor the landlord can enforce the possession order.
A successor might have inherited a tenancy where they cannot afford the repayment terms on the suspended order. They can apply to court to be joined as a party to the proceedings and apply to vary or discharge the order.
Find out more about varying a possession order.
Discretionary succession
Some social landlords operate discretionary or non-statutory succession policies. The policy might allow a succession in some circumstances where there is no statutory or contractual right.
A person who succeeds to a tenancy under a discretionary succession is not liable for the deceased tenant's existing rent arrears, but must comply with existing possession proceedings. For example, where the tenancy is subject to a suspended order on terms of monthly payments towards arrears.
A landlord might only agree to discretionary succession on the condition the successor clears the rent account. The schemes are discretionary but a local authority must follow its policies and act fairly.
Landlord claims rent arrears from estate
The landlord should claim from the executor if the tenant died with a will. The personal representative is not personally liable for the rent unless they enter into possession and receive benefit from the premises.[4]
The landlord should make a claim to the Public Trustee if the tenant died without a will. Dying without a will is also called dying intestate.
The landlord cannot recover the arrears if there is insufficient money in the deceased's estate.
What happens to existing possession proceedings?
A tenant might die when their tenancy is subject to possession proceedings. For example, a notice seeking possession or a court possession order.
Another person might inherit the tenancy when the tenant dies. For example, a tenant's spouse, civil partner, or family member. This is called succession. The successor might have to comply with existing possession proceedings.
Find out more about succession to a tenancy.
Notice from landlord
A tenant might die after they have received a notice from their landlord but before any court proceedings. A landlord must serve a new notice on the successor if they still want possession.
Find out more about notices in possession proceedings.
Suspended possession order
A successor takes over a tenancy subject to the conditions of any suspended possession order in force when the original tenant dies.[5] The successor must comply with the order. For example, a suspended order on terms of repayment towards arrears.
If the successor fails to comply with the order, the landlord can issue new proceedings against the successor or apply to court to add the successor as a party to the original proceedings.[6] If the court adds the successor the landlord can enforce the possession order.
The successor might have succeeded to a tenancy where they cannot comply with the terms of the order. They can apply to court to be joined as a party to the proceedings and apply to vary or discharge the order.
Find out more about varying a possession order.
Outright possession order
A landlord can apply to the court for a warrant of possession where there is an outright possession order in force after the date for possession.[7]
Where the order was made under a discretionary ground, the successor can apply to the court to be joined as a party to the proceedings.[8] If allowed, they can apply to vary the order to a suspended order on terms. The successor should act quickly.
Find out more about varying a possession order.
The successor might be eligible for legal aid assistance. Civil legal aid pays for legal advice for people who cannot afford to pay for a solicitor to represent them. If an application for legal aid is successful, it can pay for some or all of their legal costs.
Find out more about legal aid for housing problems.
Possession against remaining occupiers
When a tenant dies they might leave others in occupation in the property. The rights of the remaining occupiers depend on whether someone has succeeded to the tenancy.
When someone qualifies to succeed
Someone might inherit the tenancy when the tenant dies. For example, a tenant's spouse, civil partner, or family member.
A successor usually has the same tenancy as the deceased tenant, and the landlord would have to follow the correct legal process to evict the occupier.
Find out more about succession to a tenancy.
Where no-one qualifies to succeed
A tenant's death does not automatically end most tenancy types. A tenancy is property and passes to the tenant's personal representatives.
The landlord can usually serve a notice on the tenant's personal representatives or the Public Trustee to end the tenancy and take possession.
Find out more about what happens when no-one qualifies to succeed.
Last updated: 13 October 2023