Succession to a tenancy

Succession is when someone inherits a tenancy after the tenant dies. There are rules for different tenancy types about who can succeed.

Succession happens automatically if the requirements for that tenancy type are met.

Succession can only happen once for most tenancies. In some circumstances when the successor dies, there can be a second succession to another family member.

Only one person can succeed to a tenancy. Joint succession to a tenancy is not possible.

Who succeeds to a joint tenancy

When one joint tenant dies, the other tenant automatically becomes the sole tenant.[1] This is known as survivorship and happens regardless of the tenancy type.

The surviving tenant is treated as a successor to the tenancy.

Most council tenancies are secure tenancies. The rules for succession are different for flexible or introductory tenancies.

The deceased tenant’s spouse or civil partner succeeds automatically on the tenant’s death if they occupy the property as their only or main home.[2]

Another member of the family might be able to succeed if there is no spouse or civil partner. The rules are different depending on whether the tenancy began before or after 1 April 2012.

Find out more about succession to a council tenancy.

There can normally be only one succession to an assured or assured shorthold tenancy, unless the tenancy agreement allows for a further succession.

Periodic tenancies and fixed term tenancies longer than two years

The deceased tenant's spouse, civil partner or cohabitee can succeed to the tenancy if they were occupying the dwelling as their 'only or principal home' at the time of the tenant's death.[3]

Another family member can succeed if the tenancy agreement allows for it.

Find out more about succession to an assured or assured shorthold tenancy.

Fixed term tenancies shorter than two years

There is no right of succession to a sole fixed-term assured tenancy of less than two years.

Regulated tenancies were given a high level of security of tenure by the Rent Act 1977.

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

Find out more about regulated tenancies.

Succession rules after 15 January 1989

A spouse, civil partner or cohabitee of the tenant who lived in the property immediately before the death of the tenant can succeed to a statutory protected tenancy.[4]

Other family members can succeed to a regulated tenancy if:[5]

• there is no spouse, civil partner or cohabitee of the tenant

• they lived with the tenant for at least two years before the tenant's death

If more than one other member of the family is entitled to succeed, the family can decide who should succeed. The County Court must decide if there is no agreement within the family.

Find out more about succession to a regulated tenancy.

Some agricultural workers occupy accommodation as a condition of their employment. Workers who meet qualifying conditions have security as an agricultural occupier.

A spouse, civil partner, cohabitee, or another member of the family might be able to succeed when the agricultural occupier dies. There can only be one succession to an agricultural occupancy.

Find out more about agricultural occupancies.

A mobile home occupier's spouse or civil partner can succeed to the mobile home pitch agreement. If there is no spouse or civil partner, a member of the occupier's family can succeed.[6]

The spouse, civil partner or family member must have been residing with the occupier at the time of death.

Find out more about rights of mobile home occupiers.

Where a secure or assured tenant causes nuisance through antisocial behaviour, their landlord can ask the court to demote the tenancy to a 12 month probationary tenancy.

A member of a demoted tenant's family might be able to inherit the tenancy. Succession rights depend on whether the landlord is a local authority or housing association.

Find out more about demoted tenancies.

When one joint tenant dies, the other tenant automatically becomes the sole tenant.[7] This is called survivorship. It happens regardless of the tenancy type.

The surviving tenant is treated as a successor.

When the surviving joint tenant is no longer resident

If the other tenant is not resident when the resident joint tenant dies, the tenancy loses its security. This means the tenancy can be ended by the landlord serving a notice to quit.

A non-resident tenant who becomes a sole tenant following the death of the other tenant might be able to regain the security of the tenancy by moving back into the property before the notice to quit expires.[8]

The only exception to this is where there is a joint regulated tenancy and the surviving tenant no longer lives in the property. In that situation, the tenancy automatically ends.

Find out more about joint tenancies on Shelter Legal.

Effect on the succession rights of other family members

Where a joint tenancy continues after one tenant has moved out, another family member who would otherwise be entitled to succeed cannot inherit the tenancy. The absent joint tenant retains rights to occupy the property and the right to succeed under survivorship.

Family members who would otherwise be entitled to succeed should check if the joint tenancy has ended and a new sole tenancy has been granted.

Surrender of a joint tenancy and grant of a sole tenancy

When joint tenants are in agreement that the joint tenancy should end after one tenant moves out, they can notify their landlord. The tenant who remains in the property can ask the landlord to grant them a new sole tenancy, but the landlord does not have to agree.

Find out more about how a joint tenancy can be ended on Shelter Legal.

In one case, the Court of Appeal held there was no evidence that the absent joint tenant had consented to the end of the tenancy or the grant of a new sole tenancy. Although the local authority had amended internal records, including ticking a box which said ‘joint to sole’ and making a note that the absent tenant was to be removed from the rent account, they had not updated the tenancy start date, suggesting no new tenancy had been agreed.[9]

As the joint tenancy had not ended, the absent joint tenant succeeded under survivorship and the tenancy ceased to be secure. The deceased joint tenant's grandson would have been entitled to succeed if the tenancy had been changed to a sole tenancy.

Joint licensees

When a joint licensee dies, whether the remaining licensee has any right to remain depends on the terms of the licence agreement.

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

Someone who inherits a tenancy is not normally liable for the previous tenant's rent arrears, but the tenancy might remain subject to possession proceedings such as a suspended order. Possession proceedings that have already been commenced could continue. This includes cases where the court has made a suspended possession order.

Find out more about rent arrears and possession after the death of a tenant.

If no one meets the conditions for succession, or the deceased tenant had succeeded to the tenancy, a succession cannot happen.

Discretionary succession

Some landlords operate non-statutory or discretionary succession schemes.

This is a policy that a succession is allowed in some circumstances where there is no statutory or contractual right. For example, to benefit a carer who lived with the tenant.

Ending the tenancy

The death of a tenant does not automatically end a tenancy.

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. The rent is debt owed by the deceased person's estate.

The tenancy continues until it is ended in the normal manner.

A landlord who wishes to regain possession of the property must end the tenancy by serving notice before proceedings for possession can be issued.

A personal representative of the deceased tenant who wishes to end the tenancy 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.

Possession proceedings

In most cases, an occupier still living in the property who is not a successor has the limited protection provided by the Protection from Eviction Act 1977. This requires a landlord to give 28 days' notice.[10]

A court order is normally 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. Find out more about the eviction of excluded occupiers.

Secure licences are an exception. They have the same succession rights as secure tenancies under the Housing Act 1985.[11]

Probate and intestacy

All the possessions and property of a person who dies are known as their estate.

The tenancy counts as property, and automatically vests to the tenant's personal representatives. Vesting means that the tenancy automatically passes on the tenant's death.

The tenancy vests according to the 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.

Intestacy

Dying without a will is also known as dying intestate. If there is no will, the property initially vests in the Public Trustee until such time as legal authority is obtained.

When a person dies without a valid will, their estate passes to family members in a set order.

The estate passes to a spouse or civil partner if there is one. If there is no spouse or civil partner, the person's children, grandchildren and other relatives might be able to inherit. Find out more about the rules of intestacy via Citizens Advice.

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

Sole licensees

A licence is a personal permission to occupy, and not a legal interest in the property. If a sole licensee dies, there can be no succession to that licence.

The landlord is able to gain possession of the property because the licensee's right to occupy ceases to exist.