Housing Solicitors

Council Tenants

If you are a council tenant you are likely to be occupying your accommodation under a secure tenancy. The rights of your husband/wife, children or other family members to succeed to that secure tenancy are governed by sections 87 and 88 of the 1985 Housing Act.

Section 87 provides that there can only be one statutory succession to a surviving spouse (this includes civil partners) or a member of the deceased tenant’s family. If you occupy under a tenancy which was originally a joint tenancy and the other joint tenant has either died, or surrendered their interest, this will counts as a succession, pursuant to s.88 of the 1985 Housing Act. No further statutory successions can be claimed by any other occupier.

In order for there to be a succession a would-be successor must, at the time of death of the original secure tenant, have been occupying the property as their only or principal home and be either the deceased tenant’s spouse (or civil partner) or another member of the deceased tenant’s family.

In the case of anyone other than a spouse/civil partner – such as adult children, it is necessary to show that the putative successor has been residing with the late tenant for at least 12 months before his/her death. Section 113 of the 1985 Act defines members of a tenant's family for the purposes of succession and includes: spouses, parents, grandparents, children, grandchildren, siblings, uncles, aunts, nephews and nieces; including step-relations, half-relations and illegitimate children and “persons living together as husband and wife.”

Where there is more than one qualifying person to succeed, the late tenant’s spouse/civil partner takes precedence but otherwise the qualifying persons must agree amongst themselves who is to take over the tenancy.

Where an occupier (with the exception of a surviving spouse/civil partner) succeeds to a secure tenancy on the death of the previous tenant, and the accommodation afforded by the dwelling is deemed to be more extensive than is reasonably required, e.g. a single person succeeds to a two-bed property or larger, the council can seek to move the new tenant to another suitable property. Despite the fact that the surviving family member may have lived in the property for many years, local authorities will generally seek to recover repossession of under occupied properties in order to ensure the best use of their stock; this is particularly the case in London which is an area of high housing demand.

Schedule 2 to the 1985 Housing Act sets out the “Grounds” on which a council can seek to evict a secure tenant. Only a court can decide whether a particular Ground is established and whether to issue a possession order. Ground 16 of Schedule 2 (the successor Ground) provides a Ground for possession that can be used by an authority where there is a statutory right to succeed but where the property in question is deemed to be too large for the successor’s needs. This Ground, however, can never be used where the successor is the spouse/civil partner of the deceased secure tenant.

A local authority wishing to use Ground 16 against a successor must serve notice or begin proceedings no sooner than six months after the death of the previous tenant and not later than 12 months after the death.

Before a court will issue a possession order under Ground 16 it must be satisfied:

(i) that it is reasonable to order possession; and
(ii) that suitable accommodation will be available for the tenant when the order takes effect.

In determining whether it is reasonable to make an order under this ground, the court must take into account:

(a) the age of the tenant;
(b) the period during which the tenant has occupied the dwelling as his only or principal home; and
(c) any financial or other support given by the tenant to the previous tenant.

A new ground for possession (15A) has (with effect from 1 April 2012) been introduced into Schedule 2 to the Housing Act 1985 by section 162 of the Localism Act 2011. Under the new ground 15A, the court has power to direct that the date from which the time limit runs is the date on which the landlord (or in the case of joint landlords, any one of them) becomes aware of the death.

This now deals with cases where would be successors might conceal the death of a secure tenant in order to avoid the council using Ground 16 to move them into alternative accommodation. This was the case in Newport City Council v Charles [2008] EWCA Civ 1541 where possession was claimed under ground 16. Mr Charles was the son of the deceased secure tenant. After his mother died he made anonymous enquiries of the local housing authority to try and discover what was likely to happen. He discovered that it was unlikely that he would be permitted to remain in occupation and, chose not to tell the local authority that his mother had died. He continued to pay the rent in her name and even forged a letter from her giving him authority to deal with the tenancy.

The local authority became aware of the deception, only around three years after the mother’s death and instituted proceedings for possession on the basis of Ground 16 (under occupation). The only problem with that was that, at the time, Ground 16 required the Notice Seeking Possession to be served within a year of the death of the tenant. The Council were unable to evict Mr Charles, despite seeking to argue proprietary estoppel in the circumstances.

Where there is no statutory right of succession to a tenancy, social landlords can exercise their discretion to offer a new tenancy to people left in occupation on the death of a tenant (of the existing property or an alternative property). Duncan Lewis lawyers have considerable experience in assisting what are termed ‘failed successors’.

The Code of Guidance on the Allocation of Accommodation for Local Authorities (2002) contained guidance on when it might be appropriate to grant a new tenancy to those members of the household who had been living with a deceased tenant but who did not have a legal right to succeed:

Where a tenant dies and another household member (who does not have succession rights to the tenancy) has:

(a) been living with the tenant for the year prior to the tenant’s death; or
(b) been providing care for the tenant; or
(c) accepted responsibility for the tenant’s dependants and needs to live with them in order to do so.

Housing authorities should consider granting a tenancy to the remaining person or persons, either in the same home or in suitable alternative accommodation, provided the allocation has no adverse implications for the good use of the housing stock and has sufficient priority under the allocation scheme.

In the case of (a) and (b), the accommodation in question must be the principal or only residence of the survivor at the time the tenant dies.

The replacement Code of Guidance, Allocation of accommodation: guidance for housing authorities in England (June 2012) does not contain equivalent guidance. However what is important is to obtain copies of the discretionary tenancy policy and consider whether the applicant’s circumstances satisfy the criteria for being granted a discretionary tenancy.

Housing Association Tenants

Housing Association tenants who entered into their tenancy agreements prior to 15 January 1989 and have remained living in the same property are secure tenants. The same rights to succeed apply as for secure tenants of Council accommodation.

Housing Association tenants who entered into their tenancy agreements after 15 January 1989 are likely to be assured tenants. The 1988 Housing Act governs the right to succeed to an assured tenancy. Where a council transfers its stock to a Housing Association its secure tenants become assured tenants of the new landlord. Some Housing Associations who have taken over ex-local authority stock issued new tenancy agreements to give the ex-council tenants contractual rights to some of the statutory rights they enjoyed as secure tenants of the council. In these circumstances it is possible that there may be a contractual right for relatives other than a spouse/civil partner to succeed.

There can only be one statutory succession to an assured tenancy. On the death of an assured tenant his or her spouse/civil partner can succeed provided that immediately before the death s/he was occupying the dwelling as his/her only or principal home (s.17(1)(a) Housing Act 1988. The definition of spouse in this context includes persons who have been living together as husband and wife.

There can be no statutory succession if the deceased was already a successor. If the tenancy was a joint tenancy and the deceased became the sole tenant on the death of the other original tenant, there can be no statutory succession s17 (2) of the 1988 Act.

Where there is no statutory succession, a tenancy can pass under a will or intestacy and if the inheritor occupies as their only or principal home, the tenancy will still be assured but the landlord will have a mandatory Ground for possession against the successor.

Ground 7 of Schedule 2 to the 1988 Housing Act gives a Housing Association a mandatory ground for possession where a tenancy has devolved under the will of a tenant or on the late tenant’s intestacy. Proceedings must be commenced no later than one year after the death of the tenant.

The Localism Act 201120 has, with effect from 1 April 2012, amended section 17 of the 1988 Housing Act to allow Housing Associations to include express provisions in their tenancies agreements granting additional succession rights for assured tenants should they choose to do so.

Succession and same-sex couples

Paragraph 20 of Schedule 8 to the 2004 Civil Partnerships Act amended section 87 of the 1985 Housing Act to ensure that a civil partner has the same rights to succeed to a secure tenancy as a spouse. Paragraph 27 of Schedule 8 has amended the definition of “member of a person's family” in Parts 3 and 4 of the 1985 Act to include references to a civil partner or civil partnership alongside references to spouse or to marriage. The amendment also extends the definition to couples who are living together as if they were civil partners as well as people who are living together as husband and wife. Similar amendments have been made to the 1988 Housing Act.

Please contact Erol Izzet at eroli@duncanlewis.com for further advice or assistance in respect of rights to succeed to a social housing tenancy.

Erol Izzet is a Housing Solicitor at Duncan Lewis and is experienced in matters of housing and welfare law with particular expertise regarding issues arising from cases of homelessness, possession action actions and vulnerable individuals.