Rules when no one can succeed to a tenancy or licence
A tenancy counts as property and can be passed on when the tenant dies. Common law rules apply where no one has a statutory right to succeed.
Probate and intestacy
All the possessions and property of a person who dies are known as their estate. This includes a tenancy and other interests in land.
When a person dies, the estate is usually passed on to surviving relatives or friends, either according to 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.
Vesting is the passing of the deceased person's property to another person upon their death. When someone dies, if there is a will, their property vests in the executor(s) until legal authority is in place to enable the executor to dispose of it.
If there is no will, the property initially vests in the Public Trustee until such time as legal authority is obtained.
Grants of representation
Before any of the estate can be disposed of, legal authority must be in place. This legal authority is known as a grant of representation. There are two types of grant of representation:
probate, when someone is named as an executor in a will
letters of administration, where there is no will or the will is not valid, or if the named executor is unable or unwilling to act.
Both of these grants are issued by the Probate Registry. Letters of administration are granted to one or more administrator(s). The executor or administrator is known as the personal representative
When a person dies and has a joint legal interest in land or property with another person (such as a joint tenancy), that interest passes automatically to the surviving person. This is known as the right of survivorship.
Common law rules for tenancies
The death of a tenant does not end a fixed-term or periodic tenancy. The tenancy counts as property, and automatically passes (vests) on death to the tenant's personal representatives.
When common law rules apply
Some types of tenancy (eg secure, regulated, and assured tenancies) have special statutory provisions governing what happens on death.
Where someone can succeed under statutory provisions the tenancy will pass on this way rather than through will or intestacy.
In the case of a joint tenancy, the common law rule of survivorship applies.
For the types of tenancy that do not have any additional statutory provision (eg occupiers with basic protection and excluded occupiers), the common law position alone applies.
Rent and possession
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. This means that the personal representatives have to pay rent out of any money, or the value of any property, left by the tenant.
The tenancy continues until it is ended in the normal manner.
If the landlord wishes to regain possession of the property, they must end the tenancy by giving the correct notice before proceedings for possession can be issued. If the tenant's personal representative wants to end the tenancy, they must 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.
Common law rules for licences
A licence is a personal permission to occupy, and not a legal interest in the property. If a sole licensee dies, no one can succeed to that licence. The landlord is able to gain possession of the property because the licensee's right to occupy ceases to exist.
In most cases, an occupier still living in the property has the limited protection provided by the Protection From Eviction Act 1977. This requires 28 days' notice.
Generally a court order is required to evict a licensee. No court order or notice is required if the occupier was an excluded occupier or was in occupation unlawfully, for example in breach of the terms of the licence.
Last updated: 5 March 2021