Council tenancy succession

Succession happens when someone inherits a tenancy after the original tenant dies.

For most council tenancies, there can only be one succession. If the deceased tenant succeeded to the tenancy themselves, there normally cannot 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]

Types of council tenancies

Most council tenants have a secure, flexible, or introductory tenancy. A flexible tenancy is a type of secure tenancy that is granted for a fixed term. An introductory tenancy is a trial tenancy that becomes a secure or flexible tenancy, usually after 12 months.

Some councils operate a demoted tenancy regime. The succession rules are different for demoted tenants. Find out more about demoted tenancies.

If the tenant moved out before they died

A periodic tenancy loses its security if neither the tenant, their spouse or civil partner occupies the property as their only or principal home.[2]

If the tenant is not occupying the property as their only or principal home when they die there can be no succession even when a person left in occupation would qualify to succeed.

In one case, a secure tenant moved into respite care. They could not return home or assign the tenancy as they lacked mental capacity. The tenant's daughter lived in the property but could not succeed when her mother died as the tenancy had lost secure status. The Court of Appeal held this was not a breach of the daughter's rights under Articles 8 or 14 of the European Convention on Human Rights.[3]

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. 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 a tenant's death.

When a joint tenant dies, the surviving joint tenant inherits the tenancy by the common law rule of survivorship.[4] Survivorship is not a statutory succession but counts as one when determining if there is a further right to succeed to a tenancy.

The tenancy always passes to the surviving joint tenant(s). Another person cannot succeed to a joint tenancy, even if they would qualify to succeed to a sole tenancy.[5]

If the surviving tenant has moved out

The tenancy loses its security if the surviving tenant does not occupy the property as their only or principal home at the time of the joint tenant's death. The surviving tenant cannot inherit the tenancy unless they moved into the property as their only or principal home before the expiry of a landlord's notice to quit.[6]

In one case, a married couple were joint secure tenants. They separated and the mother lived in the property with her daughter. The daughter could not succeed to the secure tenancy after her mother's death as her father succeeded automatically by survivorship. The tenancy lost secure status as he was not resident.[7]

When a sole tenant dies the tenancy passes to a person qualified to inherit it. This is a statutory succession. Only one person can succeed to a tenancy.[8]

There might be more than one person who qualifies to succeed. A tenancy cannot be inherited until it has been established who succeeds. During this time, the court has the power to postpone a possession date or to suspend the execution of a possession order.[9]

Secure tenancy began before 1 April 2012 or introductory tenancy

The deceased tenant's spouse or civil partner succeeds to the tenancy if they occupied the property as their only or principal home at the time of the tenant's death.[10]

Where there is no spouse or civil partner, a cohabitee or member of the tenant's family succeeds if they:[11]

• occupied the property as their only or principal home at the time of the tenant's death

• resided with the tenant for the 12 months before the tenant's death

Residing with means making a home with the tenant rather than only staying with them.[12] The 12 months can be in any property the tenant lived in.[13] The courts have found any interference with a cohabitee's rights under Articles 8 and 14 of the European Convention of Human Rights as a result of the 12 month requirement is justified.[14]

Where there is more than one qualifying family member, they can agree who succeeds among themselves. If they cannot agree, the landlord chooses a successor.[15]

The tenancy agreement might allow someone else to succeed, such as a carer.[16]

Secure tenancy began on or after 1 April 2012 or flexible tenancy

The deceased tenant's spouse, civil partner or cohabitee succeeds if they occupied the property as their only or principal home at the time of the tenant's death.[17]

If there is more than one spouse, civil partner, or cohabitee who qualifies they can agree who succeeds between themselves. If they cannot, the landlord can decide.[18]

Other family members do not have automatic statutory succession rights. The tenancy agreement might allow someone else to succeed, such as a child. Where there is more than one person who qualifies to succeed, they can agree who succeeds between themselves. If they cannot agree, the landlord decides.[19]

Flexible or fixed term secure tenancy

A sole fixed term secure tenancy, including a flexible tenancy, does not vest automatically in a successor. It can be passed on to someone else in the course of administering the deceased's estate under a will or intestacy rules.[20]

A tenancy loses secure status unless it is vested or disposed of either:

• to a person who qualifies for a statutory succession

• by a court order during divorce or dissolution of a civil partnership or under the Children Act 1989

A tenancy that ceases to be security cannot regain security in the future.

A fixed term secure or flexible tenant should get advice on making a will to ensure the tenancy passes on according to their wishes. The beneficiary must qualify for a statutory succession for the tenancy to keep its secure status.

If the tenant does not make a will there might be unintended consequences. For example, without a will, an estranged spouse or civil partner might take precedence over an unmarried partner living with the tenant, and the tenancy could permanently lose its secure status.

Who is a cohabitee?

Cohabitees are couples who live together as if they are married or civil partners.[21] Whether a couple meets thesecriteria depends on the facts of each case.[22]

An Islamic marriage conducted in the UK under Sharia law is not recognised as a valid marriage in the UK.[23] The couple are 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.[24]

Who is a family member?

The definition of a family member includes the tenant's:[25]

• sibling

• cohabitee

• parent or child

Step-relations, half-relations, and relations by marriage are family members.[26] Foster children are not included in the definition.[27]

A landlord must recognise a child under 18 as a successor if they qualify.[28] An adult must hold the tenancy in trust until the child is 18. Find out more about tenancies for children.

Usually there can only be one succession to a council tenancy.[29]

If the deceased tenant succeeded to the tenancy someone else cannot succeed to it again unless the tenancy agreement gives extra rights.

What counts as a succession

The deceased tenant was a successor if:[30]

• they were a statutory successor

• they were the survivor to a joint tenancy

• they become a tenant by will or intestacy rules

• the tenancy was assigned to them as a potential successor

• they succeeded to or were the survivor to a fixed term tenancy that became periodic

• the court assigned them the tenancy during divorce of dissolution of civil partnership proceedings and the original tenant was a successor[31]

• they succeeded to a previous tenancy and were then granted a new secure or introductory tenancy by the same landlord within six months of the end of the earlier tenancy

Assignment by mutual exchange does not count as succession. A tenant who was a successor before the mutual exchange remains a successor in their new property.[32]

Find out more about assignment of council tenancies.

Succession after a divorce or dissolution of a civil partnership

Tenancy assignment during divorce or dissolution of civil partnership proceedings only counts as a previous succession if the original tenant was a successor.[33]

For example, a divorced parent becomes a sole tenant when a joint tenancy was assigned to them by the court. The child can succeed to the tenancy when their parent dies. In contrast, a child living with a parent who became a sole tenant by way of survivorship on the death of the other joint tenant cannot succeed when their parent dies. This is because survivorship to a joint tenancy counts as a succession.

The Court of Appeal held it is not discrimination under the European Convention of Human Rights and there was no indirect discrimination against women.[34]

Extra succession rights in the tenancy agreement

A tenancy agreement might allow additional successions.

For secure tenancies that started before 1 April 2012 or introductory tenancies, an additional succession takes effect as a discretionary succession. This creates a new tenancy, so there might be a new right of succession when the successor dies.

For secure tenancies that started on or after 1 April 2012 or flexible tenancies, an additional succession is statutory with no further rights of succession when the successor dies.[35]

Deaths before 3 October 1980

Secure tenancies, and associated succession rights, did not exist before 3 October 1980. When a tenant died it was common for the landlord to create a new tenancy for a member of the tenant's family.

This does not count as a succession, so when the family member dies another person can succeed if they meet the conditions.[36]

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.[37]

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 has the same security of tenure as the deceased tenant. For example, the successor has a secure tenancy if the original tenancy was secure.

A landlord can evict a successor by following the possession proceedings process. The landlord might have to prove grounds for possession.

Find out more about the possession proceedings process.

Ground 15A: property too large for successor

Ground 15A is available to a landlord when a successor to a secure or flexible tenancy under-occupies the property. For example, where the property has three bedrooms but the successor only needs one.

The landlord cannot use this ground if the successor is the tenant's spouse or civil partner, or where the tenant is the survivor to a joint tenancy.

The ground is discretionary. The court must be satisfied suitable alternative accommodation is available to the successor and it is reasonable to order possession.

The landlord must serve notice, or start possession proceedings where no notice is served, more than six months but less than 12 months after the relevant date.[38] This is either:[39]

• the date of the tenant's death, or

• the date on which the court decides the landlord became aware of the tenant's death

If the court awards possession and the tenant accepts the offer of alternative accommodation, the tenant is a successor in their new property.[40]

Find out more about grounds for possession.

A succession cannot take place if no one meets the conditions for succession, or the deceased tenant had succeeded to the tenancy.

The landlord might allow a discretionary succession under their policy or seek possession of the property.

Discretionary succession

Some councils 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.

The schemes are discretionary, but a local authority must follow its policies and act fairly.[41] The local authority must publish its policy and it can be challenged on public law or human rights grounds. For example, if the policy is discriminatory.

A tenancy granted under these schemes is a new tenancy. This means someone else could succeed to the new tenancy. The allocation is usually governed by the local authority's allocation policy. Alternatively, a landlord might require the deceased tenant's estate to assign the tenancy to a successor.

Find out more about local authority allocation schemes.

Landlord seeks possession of the property

The landlord must serve a valid 28 day notice to quit to end the tenancy. They can bring possession proceedings against any occupiers when the notice expires.[42] Occupiers might have a defence if the tenancy is not ended correctly.

A landlord can serve the notice to quit on a surviving joint tenant in the case of a joint tenancy where the surviving tenant has not succeeded because they are not living in the property.

If the tenancy has vested in the executors the landlord should serve the notice on them.

Where the tenant died without an executor or a will the landlord must serve a notice on the personal representatives and post or deliver it to the tenant's last known address. They must serve a copy on the Public Trustee.[43] Gov.uk has guidance for landlords.

A fixed-term secure tenancy, flexible tenancy, or introductory tenancy continues to be secure or introductory until it is dealt with as part of the deceased's estate.[44] The landlord can apply for possession as long as there are no proceedings pending for a family law property transfer.

Find out more about a landlord's notice to quit.

Probate and intestacy

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 either in the Public Trustee or the deceased tenant's executors or personal representatives.[45] The estate is liable for rent payments until the tenancy is ended. The tenancy cannot become secure even if one of the executors lives in the property as their only or principal home.[46]

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.

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