Tenancy succession

Succession is a legal term used when a person takes over a tenancy when the tenant dies. We call a person who inherits a tenancy the “successor”.

Who has a legal right to succeed?

For secure tenant/s who were granted a tenancy before 1 April 2012, a qualifying successor by virtue of the Housing Act 1985 is:
• a tenant’s partner – either spouse or civil partner
• another qualifying family member of the tenant
• the remaining joint tenant provided that the deceased tenant was not a successor themselves.

For secure tenant/s who were granted a tenancy after 1 April 2012, a qualifying successor by virtue of the Localism Act 2011 is:
• a tenant’s partner or spouse in occupation at the time of death provided that the tenant was not a successor themselves.

What happens if your partner dies?

Where a joint tenancy exists and one of the tenants dies, the tenancy automatically continues and the surviving joint tenant becomes a sole tenant. They retain all the rights and obligations of the tenancy including any rent arrears or credits. This is not classed as a succession.

On the death of a sole tenant who is not a successor themselves, the tenancy will pass to their spouse or civil partner as a succession. The spouse/civil partner must have occupied the property as his or her only or principal home at the time of the tenant’s death.

What happens if I’m not a partner of the deceased, but I lived with them?

Non-spouse successions only apply to family members but can only happen for tenancies granted before 1 April 2012.

On the death of a sole tenant, where there is no spouse/civil partner to succeed, a member of the tenant’s family may do so providing that s/he has been residing in the property as his/her only or principal home throughout the period of twelve months ending with the tenant’s death and providing the existing tenancy was granted before 1 April 2012.

A family member is defined in the Housing Act 1985 as a tenant’s parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew, niece, step child. This shall include relationship by adoption.

Succession Process

Any person who wishes to claim a tenancy following the death of a tenant must usually make a claim within one month of the death of a tenant. The Council will undertake its investigations based upon the evidence provided by the applicant and their own records to see whether that person qualifies by virtue of the legislation.

Where a spouse/civil partner of the tenant makes an application to succeed to the tenancy they would need to provide formal proof of marriage/partnership and residency at the property at the time of the tenant’s death.

An application by other persons entitled to succeed to the tenancy would need to be supported by formal proof of residency at the property for a period covering the entire twelve months before the death of the tenant. Formal proof might constitute benefit documentation, documentation by the tax office, salary pay-slips, medical documentation etc. It is essential that the applicant is able to provide proof for the whole 12 months before the death of the tenant, and not just part of it. It is important to note that Housing & Property Services will make a decision on the whole of the evidence provided, and not take into account single pieces of evidence. Therefore it may be possible to include amenity bills as part of the evidence, but not as sole evidence.

What happens if there is more than 1 person entitled to succeed?

This only applies to tenancies granted before 1 April 2012
In cases where the original tenant was granted the tenancy before 1 April 2012 and where there is more than one eligible successor and agreement cannot be reached between them as to who should succeed to the tenancy, Housing & Property Services will select a successor to the tenancy. In making this decision Housing Services will consider factors including the wishes of the original tenants, care of children, suitability, and any other issue of relevance. The applicant making the request will need to provide substantiating evidence and information to prove they qualify.

What happens if you succeed?

A successor will take on the terms and obligations of the existing tenancy agreement including the payment of any rent arrears still owed.

Only one succession is permitted by law, so if the deceased tenant has already succeeded to the tenancy even if you are a qualifying successor, the succession will not be granted. Additionally, if you succeed to a tenancy, no one else will be entitled to succeed to that tenancy when you die.

Does the size of the property being succeeded to matter?

Not where the successor is a spouse or partner. Where a successor is not to a spouse or partner and the property is:
• larger than would be reasonably required by the successor and/or
• has been adapted for the deceased and the adaptions are not needed by the qualifying successor or a household member
the Housing Act 1985 allows the Council to require the successor to move to smaller/ suitable accommodation. Every effort is made to find accommodation that the successor tenant would be happy to move to. However, the Council does have the option of regaining possession of the property after a 6 month period has elapsed if agreement cannot be reached.

What happens if I lived with the deceased tenant but I don’t qualify to succeed?

Where the death of a sole tenant leaves someone in the property who does not have a legal right to succeed to the tenancy, Housing & property Services will consider granting a tenancy in certain circumstances of that, or an alternative property but in accordance with the Council’s Housing Allocations Policy. Therefore an application for housing must be made immediately at Sussex Homemove.

Independent legal advice

Potential successors should seek their own legal advice.

Appeals

Any person(s) who are dissatisfied with a decision made concerning their application for succession should discuss the matter in the first instance with the Housing Services Manager. If they are still dissatisfied, then the complaint will be dealt with under the Council’s complaints procedure.