1

53-54 Doughty Street, London WC1N 2LS Telephone 020 7404 1313

Fax 020 7404 2283/84 DX 223 Chancery Lane

Email enquiries@doughtystreet.co.uk Website www.doughtystreet.co.uk

STATUTORY SUCCESSION

Jim Shepherd Introduction 1. With the coming into force of the Localism Act 2011 housing practitioners now

need to come to terms with two statutory succession regimes. Firstly the regime

involving tenancies granted pre-April 2012 (“The old regime”) and secondly the

regime involving tenancies granted post April 2012 (“The new regime”).

2. It is slightly misleading however to refer to the pre April 2012 regime as the “old

regime” because for obvious reasons this is going to be the primary regime for

practitioners for some time. Therefore I intend to deal with both regimes.

3. I have deliberately not dealt with the provisions under the Rent Act 1977. Rent Act

cases are increasingly rare and my intention is to concentrate on issues that arise

regularly for housing practitioners1.

THE OLD REGIME

4. The issue of succession rights usually arises when the landlord is seeking

possession of the person’s home and treating them as an unauthorised occupant. At

a time when empty social housing is scarce and landlords are under pressure to

maximise the utility of the stock they have it is likely that they will increasingly seek

to challenge the succession rights of Defendants falling under the old regime (those

that are seeking to succeed to pre - April 2012 tenancies). Usually these succession

1 I also have not dealt with Introductory tenancies for whom the rights of the secure tenant are largely

replicated.

2

disputes will centre on the issue of residence, and following the decision in Freeman

(see below) it will be the quality of residence that is important. In order to properly

assist clients who are defending possession proceedings on the basis of succession

rights practitioners will need to ask a number of fundamental questions:

What sort of tenancy did the deceased have?

5. This will dictate the potential succession rights enjoyed by the client. As a

reminder:

Secure tenants

6. Under Housing Act 1985, s.87 a person is qualified to succeed to a secure periodic

tenancy if he occupied the dwelling house as his only or principal home at the time

of the tenant’s death and either:

i) He is the tenant’s spouse or civil partner or

ii) He is another member of the tenant’s family and has resided with the

tenant throughout the period of 12 months ending with the tenant’s death.

7. A secure periodic tenancy can only be transferred once. If a secure fixed term

tenancy is vested or otherwise disposed of in course of administration of the

tenant’s estate (as limited in HA 1985,s.90(3) and the devolution is such that it

passes to a person who qualifies as a successor, that person becomes the secure

tenant. If on the other hand it passes to a person who does not so qualify the fixed

term tenancy ceases to be a secure tenancy, and the new tenant has only

contractual security, determinable by notice to quit.

Assured tenancies

3

8. Under Housing Act 1988,s.17 there is a single right of succession to a periodic

assured tenancy which is only enjoyed by a surviving spouse or civil partner (defined

to include a person living with the deceased as a spouse or civil partner) who is in

occupation of the premises as his only or principal home at the time of the tenant’s

death.

9. A fixed term assured tenancy will devolve by will or intestacy, and the person who

takes under it will- if occupying as only or principal home enjoy an assured tenancy

and the right to a subsequent statutory tenancy.

Is there a tenancy to transfer?

10. Was the deceased occupying the premises as their only or principal home at the

time of the death? This issue arises quite frequently. In particular where an elderly

tenant has gone into long term care leaving a family member in occupation and the

landlord has served a notice to quit prior to their death. Issues arise as to whether

succession rights are preserved. In Hammersmith & Fulham L.B.C. v Clarke2, the

respondent's grandmother, with whom he lived, was a secure tenant of the

authority. In 1998 she fell ill and was admitted to a nursing home, leaving the

respondent and her belongings in the house. Shortly after entering the home, the

respondent’s grandmother signed a note expressing her intention to become a

permanent resident of the nursing home, in reliance on which the authority issued

her with a notice to quit. The respondent failed to vacate and the authority

commenced possession proceedings, which were successfully defended on the basis,

that the respondent's grandmother intended to return to live in the house and

therefore remained a secure tenant. The authority appealed, arguing that the

respondent's grandmother was not a secure tenant, as she had not occupied the

premises as her only or principal home at the date on which the tenancy had been

determined by the notice to quit. The Court of Appeal dismissed the appeal. When

2 (2001) 33 HLR 77

4

determining the intention of the tenant, a court should not focus on "fleeting

changes of mind" but rather on the enduring intention of the tenant, especially

where, as in the present case, those intentions may fluctuate. See earlier – Tickner v

Hearn [1960] 1 WLR 1406, CA where the Court of Appeal found that a tenant who

suffered from schizophrenia although “mentally unsound” was capable of forming an

intention to return to premises from a mental hospital.

11. In Islington v Boyle and Collier [2011] EWCA Civ 1450; [2012] HLR 18 however,

the Court of Appeal summarised the principles to be applied in determining which of

two homes a person occupies a dwelling as their only or principal home:

a) The length of the tenant’s absence from the dwelling of which possession is

sought, or other circumstances relevant to that absence, may raise the

presumption that the dwelling has ceased to be the tenant’s principal home;

b) to rebut that presumption, it is not sufficient for the tenant to prove that it

was his subjective intention and belief that the dwelling remained his

principal home; the objective facts must bear out the reality of that belief

and intention both in the sense that the intention and belief were genuinely

held and also that the intention and belief reflected reality; the reason for

the absence, the length and other circumstances of the absence and the

anticipated duration of the absence, as well as statements and conduct of the

tenant, are all relevant to that objective assessment;

c) The court’s focus is on the enduring intention of the tenant which, depending

on the circumstances, may not be displaced by fleeting changes of mind;

d) The issue is one of fact to be determined in light of the evidence as a whole,

and in respect of which the trial judge’s findings of primary fact can only be

overturned if they were perverse but an appeal court may, in an appropriate

case, substitute its own inferences drawn from those primary facts.

5

12. The court stressed the importance of the reality of continued occupation of the

premises in question. If objectively it is impossible to describe the dwelling as being

occupied as the Defendant’s sole or principal residence, even if legally he or she is

still in occupation of it (by virtue, for example, of the presence of furniture, personal

possessions or people), then the tenant condition is not satisfied however much the

Defendant may intend to live there again and believe it remains his or her sole or

principal home [63].

13. This focus on the reality of the situation may make it difficult to argue that

security of tenure has continued in the care home scenario described above.

Was the deceased tenant himself a successor?

14. This is particularly important to determine. Full disclosure of the deceased’s

housing file will be necessary to disentangle the tenancy history. Note that the

definition of successor3 under both statutes includes surviving joint tenants under

the common law doctrine of survivorship: Solihull v Hickin [2012] UKSC 39 where a

joint secure tenant died leaving an otherwise qualifying family member in

occupation who sought to succeed, the tenancy nonetheless vested in the surviving

tenant, even if he did not reside at the premises accordingly the tenancy had ceased

to be secure, the authority could therefore terminate the tenancy by notice to quit

and the family member could not succeed.

15. However a person who had been a joint tenant and had become a sole tenant by

right of survivorship prior to 1980, (when secure tenancies were introduced under

the Housing Act 1980) was not a successor for the purposes of the 1985 Act because

there had been no previous succession under a secure tenancy: Birmingham v

Walker [2007] UKHL 22; [2007] 2 AC 262.

3 See HA 1985,s.88 and HA1988,s.17(2).

6

16. Note that in the case of secure tenancies unless the tenancy agreement

otherwise provides, when a successor is offered a new tenancy of the same dwelling-

house, or of another dwelling-house from the same landlord, to commence within

six months of the determination of the earlier tenancy - which itself was a periodic

tenancy - the successor remains a successor even in relation to the new tenancy4.

This may preclude the often run argument that renewed succession rights are

granted where the deceased was a successor but had been asked to sign a new

tenancy agreement.

17. Similarly under the Housing Act 19885 the limitation to one succession is

reinforced by treating as a successor a tenant who became such by the grant of a

new tenancy of the same or substantially the same dwelling-house, following an

earlier tenancy to which he had succeeded.

How many potential successors are there?

18. It may be that your client is competing to succeed with other family members

who all qualify. In the case of secure tenancies HA 85, s. 89(2)6 governs the choice of

successor. The spouse/civil partner has preference over family members. If there is

no spouse/civil partner and there is a dispute between family members the landlord

chooses. Contrast the position in the case of assured tenancies where the matter is

referred to the county court for decision (HA 1988,s.17(5) and (6)).

19. Note that there is no possibility of joint succession Dealex Properties v. Brooks

[1966] 1 Q.B. 542, CA) and Newham LBC v Phillips (1997) 30 HLR 859, CA.

4 S 88(4) Housing Act 1985

5 S 17 (3)

6 Note the amended provisions for post April 1 2012 tenancies following the Localism Act under s.89

(1A).

7

Is your client a member of the family?

20. Because of the limitation of succession rights in assured tenancies to

spouses/civil partners (as extended to cohabitees) this issue will only arise in the

case of secure tenancies. Usually it will be obvious whether your client is a member

of the family of the deceased. There is a clear definition of member of the family in

HA 985,s.113. In summary it states:

Spouse or civil partner or person living together with another as if they were

his spouse or civil partner.

Parent, grandparent, child, grandchild, brother, sister, uncle, aunt, nephew or

niece.

A relationship by marriage or civil partnership shall be treated as a

relationship by blood. A relationship of half blood shall be treated as a

relationship of full blood. The stepchild of a person shall be treated as his

child (including the stepchild of a civil partner) and an illegitimate child shall

be treated as the legitimate child of his mother and reputed father.

21. In Brent LBC v Fofana, September 1999, Legal Action 28, CA the Appellant

claimed that he was entitled to succeed because his mother and the deceased’s

mother had been sisters and according to his African culture he and the deceased

were brothers. The Court of Appeal held that the term “member of the family” could

only be satisfied by the relationships listed in S113.

22. The limitation of rights of succession to those specifically designated is not a

breach of Articles 8 and 14 of the ECHA: Wandsworth LBC v Michalak [2002] EWCA

Civ 271. Mr Michalak lived for 13 years with a secure council tenant, Mr Lul. They

were distantly related. On Mr Lul’s death the council served a notice to quit on the

Public Trustee and claimed possession. Mr Michalak took a human rights challenge

as to the incompatibility of S113. The Court of Appeal held that Section 113

8

contained an exhaustive list of categories of family members eligible to succeed and

there was an objective justification for having a closed list, which was certainty in

determining who has the right to succeed. The Rent Act does not have an exhaustive

list but the schemes were not comparable. Finally the court also held that on a claim

for possession against a non-successor the county court was not required to

investigate the individual circumstances of the defendant in order to find if the

conditions in Art 8(2) were made out. Those conditions were satisfied by the

common law right to recover possession of property against a person who under the

relevant statutory scheme had no right to remain following the death of the tenant.

23. A foster child is not a “child” for the purposes of s.113, only blood relations (

including illegitimate children) and step-children are included: Sheffield v Wall [2011]

1 WLR 1342.

24. Whether or not persons are living together as husband and wife or civil partners

is a question of intention: Westminster v Peart (1991) 24 HLR 389,CA – couple held

not to be living together as husband and wife where the defendant had another flat.

See also Amicus v Mabbott and Brand [2012] EWCA Civ 895 where the judge at first

instance held that the Defendant was not entitled to succeed under HA 1988,s.17

because he had not been living with the deceased tenant as her husband. Although

he had stayed at the deceased’s home about three nights each week, he had spent

the rest of the week with his mother. He and the deceased had claimed welfare

benefits separately. The judge was satisfied that the degree of separateness was a

demonstration of the deceased’s unwillingness to commit fully to a relationship with

the defendant. The Court of Appeal refused to overturn the decision.

25. Following the line of cases starting from Harrogate v Simpson (1984) 17 HLR 205,

CA; Fitzpatrick v Sterling [2001] 1 AC 27and Ghaiden v Godin-Mendoza [2004] HLR 46

the amendments made by the Civil Partnership Act 2004, Sch8 ensure that civil

partners are now properly recognised in terms of succession rights although there

may still be challenges of the type brought in Mabbut and Brand in the context of

same sex couples living together as if they were civil partners: see for example the

9

earlier case of Nutting v Southern Housing Group [2004] EWHC 2892 where the

quality of the relationship in question was challenged.

Is your client a minor?

26. A minor can succeed to a secure tenancy: Kingston-upon-Thames R.L.B.C. v.

Prince (1999) 31 H.L.R.794, CA. In such circumstances, the property was held on

trust for the child until she reached the age of majority.

Was your client occupying the premises as his/her only or principal home7 at the

time of death?

27. Often the emphasis is on the residence requirement in secure tenancy succession

cases. However it has to be remembered that a prospective successor who is a

family member has to prove that they were occupying the premises as their only or

principal home at the time of death as well as meeting the residence requirement.

Whether a home is occupied as a person's only or principal home is a matter of fact

for the court at first instance to decide. The court of Appeal in Crawley B.C. v Sawyer

considered this phrase in the context of absence from the premises8 and held that,

provided the tenant has an intention to return to the premises9 and that this

intention is manifested by some physical evidence10 (such as leaving furniture and

possessions in the premises) there is no need to show actual physical occupation of

the premises - following the line of Rent Act cases on residence see for example

Brown v Brash [1948] 2 KB 247, CA and Gofor Investments v Roberts (1975) 25 P & CR

366, CA

7 A requirement of the Housing Act 1985 and 1988

8 (1987) 20 H.L.R. 98, CA

9 animus possidendi

10 corpus possessionis

10

28. In Sumeghova v McMahon11 [2002] EWCA Civ 1581, the court held that in

determining whether a property is a person’s only or principal home the fact that

he/she sleeps at the premises is of considerable importance, although not always

decisive.

29. See now the principles laid down in Islington v Boyle above.

Was your client residing with the deceased or in the premises at the date of death

and for the requisite period?

30. "Residing with" does not necessarily mean at the subject premises; occupation

with the deceased at other premises whether on a secure tenancy or not will suffice:

London Borough of Waltham Forest v. Thomas (1992) 24 H.L.R. 622, HL A spouse

succeeding does not have to show residence with the deceased: the requirement is

confined to other members of the family who may succeed.

31. It is a question of fact whether the prospective successor has been residing with

the deceased: Middleton v. Bull (1951) 2 T.L.R. 1010, CA. The fact that the tenant was

in hospital at the time of death (which is relatively common) will not prevent

residence "with" the deceased: Tompkins v. Rowley [1949] E.G.D. 314, CA. But where

a would-be successor moved into the tenant's home when she was already in

hospital, where she died, and never lived with her beforehand, he was not residing

with her for this purpose: Foreman v. Beagley [1969] 1 W.L.R. 1387, CA.

32. Residence can be maintained even if the prospective successor has moved out

temporarily during the 12-month period: Camden L.B.C. v. Goldenberg (1996) 28

H.L.R. 727, CA. He would have to show a sufficient continuing connection with the

premises, e.g. through leaving possessions and a sufficient intention to return.

11

A case on S3 A (2) (b) of the Protection from Eviction Act 1977 but with implications for succession

cases

11

33. The leading case on residence in the context of succession is unfortunately now

Islington v Freeman [2009] EWCA CIv 536; [2010] HLR 6, CA. Ms Freeman’s father

was the secure tenant of a flat. Ms Freeman owned a flat in Hackney. Her father’s

health deteriorated in 2002 and she moved in to look after him for three days a

week. By June 2004 she was staying for seven days a week. In July 2004 her father

completed a housing benefit form in which he stated that he lived alone. All of her

correspondence, save for credit card bills continued to be sent to her flat in Hackney.

The utility bills for the Hackney flat remained in her name and she continued to pay

the TV license fee. In June 2005 she let out the Hackney flat for six months. On 30th

June 2005 her father died. She asked Islington to accept that she had succeeded. She

stated that she had moved into the flat to care for him “earlier this year”. Islington

refused to acknowledge a succession and started possession proceedings. The judge

at first instance held that Ms Freeman was not entitled to succeed. Although she had

lived at her father’s flat for the 12 months prior to his death, for the majority of the

time she had been uncertain as to how long she would remain and she had no

settled intention to make the flat her home until May or June 2005. He relied

particularly on the following matters:

a) The fact that she had been vague about the date she moved into her

father’s flat;

b) The fact that she had not let out the Hackney flat until June 2005;

c) The fact that she had continued to pay the utility bills for the Hackney flat;

d) The fact that she used the Hackney flat for most of her correspondence;

and

e) The fact that her father did not consider her to be residing with him in July

2004 when he completed his housing benefit form.

12

34. The judge made a possession order and Ms Freeman appealed. The Court of

Appeal dismissed the appeal. Mere physical presence is not enough to amount to

“residing with” for the purposes of HA 1985,s.87. There must to a significant degree,

be an intention which can be characterised as making a home with the tenant. Just

staying in the property is not enough. Further the nature of this occupation must

have the necessary qualities of “residing with” for the whole year before the death.

35. In reaching their decision the Court of Appeal looked at a number of Rent Act

authorities which dealt with the quality of residence. It is necessary for the

prospective successor to have made their home with the deceased: Collier v

Stoneman [1957] 1 WLR 1108,CA and been a member of their household: Foreman v

Beagley [1969] 1 WLR 1387, CA. What is required is something more that “living at”:

Foreman. In Swanbrae Ltd v Elliot (1987) 19 HLR 86,CA, Swinton Thomas J said:

In my view the person claiming the statutory tenancy must show that he or

she has made a home at the premises which they are claiming and has

become in the true sense a part of the household. In this case Mrs Elliot had

lived at 49 Wellington Road for a limited period. She did not spend all her

time, by any means at that address. She had a settled home at 4

Gainsborough Avenue. She went to 49 Wellington Road for the purpose of

caring for her mother who was ill. Her son remained at Gainsborough Avenue.

Having considered this case with great care during the submissions and for

some period of time since, I have come to the conclusion that it was not

established by Mrs Elliot that she had made her home at 49 Wellington Road

or that in any true sense she had become part of her mother’s household

there.

36. Kerr L.J then stated:

For want of a better word, I think that Mrs Elliot was a visitor, a temporary

resident…Her position can hardly be put better than she did herself, entirely

frankly, in her evidence, when she said: “ I moved in with my mother for so

13

long as was necessary”….She moved in for limited time and for a limited

purpose.

37. Whilst Freeman was a two homes case it can be anticipated that landlords will

seek to challenge the quality of residence even in cases where the premises

concerned was the only one apparently occupied by the Defendant. It is not enough

for a prospective successor to prove that he was living with the deceased using the

usual means of proof: correspondence, bank accounts, doctors surgery records,

voting register, enthusiastic and friendly neighbours etc, it is also necessary to show

that his intention throughout the 12 month period was to make his home with the

deceased and be part of the household. Practitioners will want to consider this when

preparing their case. If this was the client’s genuine intention the witness evidence

should focus upon this issue.

THE NEW REGIME (Succession rights under the Localism Act 2011)

Secure tenancies

38. From April 1st 2012 any new secure tenancy granted in England12will have

different statutory succession rights than previously. This will apply to both flexible

secure tenancies and standard periodic secure tenancies13.

39. S.160 of the Localism Act brought into force the new section 86A Housing Act

1985. Practitioners will want to familiarise themselves with this provision which will

be the guiding provision on succession for all new secure tenancies granted post 1

April 2012.

12

Wales has retained the previous succession rights. 13

The Localism Act amendments don’t apply to secure tenancies granted before 1st April 2012 or those

that came into being by virtue of HA 1985,s.86 (periodic tenancy arising on termination of fixed term):

s.86A(6).

14

40. Under s.86A, as before, a person is qualified to succeed if they occupy the

relevant dwelling house as their only or principal home at the time of the tenant’s

death and they are the spouse or civil partner of the tenant (s. 86 A (1)).

41. However statutory succession rights of family members will no longer be

available automatically. Instead under s.86A(2) a person is qualified to succeed if

there is no qualified spouse or civil partner and an express term of the tenancy

makes provision for a person other than such a spouse or civil partner of the tenant

to succeed to the tenancy, and the succession is in accordance with the term.

42. This allows landlords to exclude the rights of family members to succeed.

Alternatively it allows them to widen succession rights to include non-family

members, e.g carers or to require lesser residence periods. If the succession rights

are contained in the tenancy agreement and are satisfied, the secure tenancy will

vest automatically in the defined successor: Housing Act 1985, s 89(1A). The landlord

can dictate the qualifying criteria in the tenancy term. If the prospective successor

does not meet the criteria they will not succeed. Questions may arise as to the

definition of family members. Will authorities use the same definition in HA

1985,s.113 (see above) ?

43. As now it will not be possible to succeed to a tenant who was him/herself a

successor (s.86A(4))14 unless the tenancy agreement makes provision for a further

succession (s.86A(4)). If there is such a term and the prospective successor meets

the qualifying criteria the tenancy will automatically vest in that person. This may

elevate the rights of second succession cases from contractual rights which are often

difficult to enforce (because of privity of contract) to statutory rights.

44. Many pre-April 2012 standard secure tenancy agreements will recite the

succession rights for family members under s.87 (see above). If the same agreements

are used post April 2012 family members will arguably retain their right to succeed

14

The definitions of cases where the tenant is a successor in s.88 remain unchanged.

15

providing they meet the previous qualifying criteria i.e. member of the family,

resided with the deceased for 12 months and occupying as only or principal home at

the time of death.

45. Under the new s.86A Housing Act 1985, the definition of spouse or civil partner is

enlarged to include those who occupy the home and were living with the late tenant

“as” the tenant’s spouse or “as if” they were the tenant’s civil partner ( s86A(5)) thus

widening primary succession rights to include cohabitees.

46. If there is more than one person who meets the extended spouse/civil partner

definition on the death of the tenant they will have to agree between themselves

who is to succeed or the landlord will decide who is to be treated as the tenant’s

spouse or civil partner for the purposes of the provision (s86A (7)).

Grounds for possession

47. In light of the fact that more secure tenancies are likely to be fixed term

tenancies in the future, s.90 Housing Act 1985 is enlarged to enable a landlord to

recover possession where the secure tenant dies during the running of the fixed

term and there is no statutory successor but the tenancy has devolved under the

deceased’s estate (s.90(5)-(10))15.

48. A new Ground 15A of Schedule 2 Housing Act 1985 has been introduced to seek

to overcome the issues raised in Newport CC v Charles [2008] EWCA Civ 1541;[2009]

1 WLR 1844, where the son of a deceased tenant, had concealed her death for three

years in order to avoid the council using Ground 1616 to move him to an alternative

accommodation. The new ground which applies to both fixed term and periodic

tenancies makes provision for a court to give a landlord permission to rely on a

notice of seeking possession served between six months and 12 months after the

15

A similar amendment is made in the case of assured tenancies- see amended Ground 7 of Sch 2

Housing Act 1988. 16

Under-occupying family successors. The amendment was also made to Ground 16 in Wales.

16

date it becomes aware of the tenant’s death, even if that date is significantly later

than the actual date of death.

Assured tenancies

49. In the case of assured tenancies granted by housing associations before April 1

2012 statutory succession only applies to spouses or civil partners (including

cohabitees) –see above. Many housing associations gave extended contractual rights

to other family members in their tenancy agreements. This was particularly the case

in agreements granted to former secure tenants where the landlord acquired a local

authority’s stock under a large scale voluntary transfer and wished to ensure that

tenant’s rights were not reduced on the transfer. These rights were often difficult to

enforce due to privity of contract. It was also necessary to terminate the deceased’s

tenancy before granting any new tenancy. The amendments to s.17 Housing Act

1988 seek to deal with these difficulties and align the rights of assured tenants of

housing association with those of secure tenants.

50. The new subs (1A) to (1E) to s.17 of the Housing Act 1988 give similar succession

rights to assured tenancies granted by private registered providers17 to those

enjoyed by secure tenants under the new regime. As before under s.17(1) the

spouse or civil partner (including cohabitees) have primary succession rights.

However where there is no qualifying spouse or civil partner then any person who

qualifies to succeed under a relevant express tenancy term will inherit the tenancy

automatically (s.17 (1A)). This applies equally to fixed term tenancies which are

equivalent to flexible tenancies (s.17(1B) –(1C)). In the case of both fixed term and

periodic tenancies there will only be one right to succession, unless the tenancy

agreement provides otherwise (s.17(1D) (1E)).

17

In reality it is only likely to be PRPs that grant full assured tenancies post April 1st 2012. There are

some residual private rented fully assured tenancies in existence – the old regime will apply in those

cases.

17

51. The new regime raises a number of questions and issues including, the crucial

importance of express tenancy terms in dictating succession rights in the future and

the risk of an existing tenant inadvertently falling into the new regime by signing a

new tenancy with the same landlord. The value of succession has undoubtedly been

reduced with the introduction of flexible tenancies. The idea that a social housing

tenancy is a home for life (or two lives) is now potentially a thing of the past.

A note on statutory assignment

52. A secure tenancy cannot be assigned unless it is to a person who could have

succeeded on the death of the secure tenant, or if the assignment is in the course of

a property transfer order under matrimonial and family legislation, or if it is an

assignment by way of exchange: HA 1985,s.91.

53. There is an implied term in periodic assured tenancies to the effect that they

cannot be assigned otherwise than with the consent of the landlord: HA

1988,s.15(1). For fixed term assured tenancies there is no such implied term but the

tenancy itself may prohibit assignment.

54. These provisions are unaffected by the Localism Act 2011.

Jim Shepherd

Doughty Street Chambers

May 2013

j.shepherd@doughtystreet.co.uk

18

Housing Act 1985

Succession on death of tenant

86A Persons qualified to succeed tenant: England

(1) A person (“P”) is qualified to succeed the tenant under a secure tenancy of a dwelling-house in England if—

(a) P occupies the dwelling-house as P's only or principal home at the time of the tenant's death, and

(b) P is the tenant's spouse or civil partner.

(2) A person (“P”) is qualified to succeed the tenant under a secure tenancy of a dwelling-house in England if—

(a) at the time of the tenant's death the dwelling-house is not occupied by a spouse or civil partner of the tenant as his or her only or principal home,

(b) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and

(c) P's succession is in accordance with that term.

(3) Subsection (1) or (2) does not apply if the tenant was a successor as defined in section 88.

(4) In such a case, a person (“P”) is qualified to succeed the tenant if—

(a) an express term of the tenancy makes provision for a person to succeed a successor to the tenancy, and

(b) P's succession is in accordance with that term.

(5) For the purposes of this section—

(a) a person who was living with the tenant as the tenant's wife or husband is to be treated as the tenant's spouse, and

(b) a person who was living with the tenant as if they were civil partners is to be treated as the tenant's civil partner.

(6) Subsection (7) applies if, on the death of the tenant, there is by virtue of subsection (5) more than one person who fulfils the condition in subsection (1)(b).

(7) Such one of those persons as may be agreed between them or as may, where there is no such agreement, be selected by the landlord is for the purpose of this section to be treated (according to whether that one of them is of the opposite sex to, or of the same sex as, the tenant) as the tenant's spouse or civil partner

19

87. Persons qualified to succeed tenant [: Wales] .

A person is qualified to succeed the tenant under a secure tenancy [ of a dwelling-house in Wales] if he occupies the dwelling-house as his only or principal home at the time of the tenant's death and either—

(a) he is the tenant's spouse [ or civil partner] , or

(b) he is another member of the tenant's family and has resided with the tenant throughout the period of twelve months ending with the tenant's death;

unless, in either case, the tenant was himself a successor, as defined in section 88.

20

88.— Cases where the tenant is a successor.

(1) The tenant is himself a successor if—

(a) the tenancy vested in him by virtue of section 89 (succession to a periodic tenancy), or

(b) he was a joint tenant and has become the sole tenant, or

(c) the tenancy arose by virtue of section 86 (periodic tenancy arising on ending of term certain) and the first tenancy there mentioned was granted to another person or jointly to him and another person, or

(d) he became the tenant on the tenancy being assigned to him (but subject to subsections [(2) to (3)] ), or

(e) he became the tenant on the tenancy being vested in him on the death of the previous tenant [, or]

[

(f) the tenancy was previously an introductory tenancy and he was a successor to the introductory tenancy.

]

(2) A tenant to whom the tenancy was assigned in pursuance of an order under section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings) [or section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.) ] 3 is a successor only if the other party to the marriage was a successor.

[

(2A) A tenant to whom the tenancy was assigned in pursuance of an order under Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.) is a successor only if the other civil partner was a successor.

]

(3) A tenant to whom the tenancy was assigned by virtue of section 92 (assignments by way of exchange) is a successor only if he was a successor in relation to the tenancy which he himself assigned by virtue of that section.

(4) Where within six months of the coming to an end of a secure tenancy which is a periodic tenancy (“the former tenancy”) the tenant becomes a tenant under another secure tenancy which is a periodic tenancy, and—

(a) the tenant was a successor in relation to the former tenancy, and

(b) under the other tenancy either the dwelling-house or the landlord, or both, are the same as under the former tenancy,

the tenant is also a successor in relation to the other tenancy unless the agreement creating that tenancy otherwise provides.

21

89.— Succession to periodic tenancy.

(1) This section applies where a secure tenant dies and the tenancy is a periodic tenancy.

[

(1A) Where there is a person qualified to succeed the tenant under section 86A, the tenancy vests by virtue of this section—

(a) in that person, or

(b) if there is more than one such person, in such one of them as may be agreed between them or as may, where there is no agreement, be selected by the landlord.

]

(2) Where there is a person qualified to succeed the tenant [ under section 87] , the tenancy vests by virtue of this section in that person, or if there is more than one such person in the one to be preferred in accordance with the following rules—

(a) the tenant's spouse [ or civil partner] is to be preferred to another member of the tenant's family:

(b) of two or more other members of the tenant's family such of them is to be preferred as may be agreed between them or as may, where there is no such agreement, be selected by the landlord.

[

(3) Where there is no person qualified to succeed the tenant, the tenancy ceases to be a secure tenancy—

(a) when it is vested or otherwise disposed of in the course of the administration of the tenant's estate, unless the vesting or other disposal is in pursuance of an order made under—

(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders made in connection with matrimonial proceedings),

(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), [...]

(iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or

[

(iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.), or

]

(b) when it is known that when the tenancy is so vested or disposed of it will not be in pursuance of such an order.

]

(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.

22

90.— Devolution of term certain.

(1) This section applies where a secure tenant dies and the tenancy is a tenancy for a term certain.

(2) The tenancy remains a secure tenancy until—

(a) it is vested or otherwise disposed of in the course of the administration of the tenant's estate, as mentioned in subsection (3), or

(b) it is known that when it is so vested or disposed of it will not be a secure tenancy.

(3) The tenancy ceases to be a secure tenancy on being vested or otherwise disposed of in the course of administration of the tenant's estate, unless—

[

(a) the vesting or other disposal is in pursuance of an order made under—

(i) section 24 of the Matrimonial Causes Act 1973 (property adjustment orders in connection with matrimonial proceedings),

(ii) section 17(1) of the Matrimonial and Family Proceedings Act 1984 (property adjustment orders after overseas divorce, &c.), [...]

(iii) paragraph 1 of Schedule 1 to the Children Act 1989 (orders for financial relief against parents), or

[

(iv) Part 2 of Schedule 5, or paragraph 9(2) or (3) of Schedule 7, to the Civil Partnership Act 2004 (property adjustment orders in connection with civil partnership proceedings or after overseas dissolution of civil partnership, etc.), or

]]

(b) the vesting or other disposal is to a person qualified to succeed the tenant.

(4) A tenancy which ceases to be a secure tenancy by virtue of this section cannot subsequently become a secure tenancy.

[

(5) The following provisions apply where a tenancy that was a secure tenancy of a dwelling-house in England—

(a) has been vested or otherwise disposed of in the course of the administration of the secure tenant's estate, and

(b) has ceased to be a secure tenancy by virtue of this section.

(6) Subject as follows, the landlord may apply to the court for an order for possession of the dwelling-house let under the tenancy.

(7) The court may not entertain proceedings for an order for possession under this section unless—

(a) the landlord has served notice in writing on the tenant—

(i) stating that the landlord requires possession of the dwelling-house, and

23

(ii) specifying a date after which proceedings for an order for possession may be begun, and

(b) that date has passed without the tenant giving up possession of the dwelling-house.

(8) The date mentioned in subsection (7)(a)(ii) must fall after the end of the period of four weeks beginning with the date on which the notice is served on the tenant.

(9) On an application to the court for an order for possession under this section, the court must make such an order if it is satisfied that subsection (5) applies to the tenancy.

(10) The tenancy ends when the order is executed

24

Housing Act 1988

Succession on death of tenant

17.— Succession to [assured tenancy] .

(1) [Subject to subsection (1D), in] any case where—

(a) the sole tenant under an assured periodic tenancy dies, and

(b) immediately before the death, the tenant's spouse [ or civil partner] was occupying the dwelling-house as his or her only or principal home, [...]

[...]

then, on the death, the tenancy vests by virtue of this section in the spouse [ or civil partner] (and, accordingly, does not devolve under the tenant's will or intestacy).

[

(1A) Subject to subsection (1D), in any case where—

(a) there is an assured periodic tenancy of a dwelling-house in England under which—

(i) the landlord is a private registered provider of social housing, and

(ii) the tenant is a sole tenant,

(b) the tenant under the tenancy dies,

(c) immediately before the death, the dwelling-house was not occupied by a spouse or civil partner of the tenant as his or her only or principal home,

(d) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and

(e) there is a person whose succession is in accordance with that term,

then, on the death, the tenancy vests by virtue of this section in that person (and, accordingly, does not devolve under the tenant's will or intestacy).

(1B) Subject to subsection (1D), in any case where—

(a) there is an assured tenancy of a dwelling-house in England for a fixed term of not less than two years under which—

(i) the landlord is a private registered provider of social housing, and

(ii) the tenant is a sole tenant,

(b) the tenant under the tenancy dies, and

(c) immediately before the death, the tenant's spouse or civil partner was occupying the dwelling-house as his or her only or principal home,

then, on the death, the tenancy vests by virtue of this section in the spouse or civil partner (and, accordingly, does not devolve under the tenant's will or intestacy).

(1C) Subject to subsection (1D), in any case where—

25

(a) there is an assured tenancy of a dwelling-house in England for a fixed term of not less than two years under which—

(i) the landlord is a private registered provider of social housing, and

(ii) the tenant is a sole tenant,

(b) the tenant under the tenancy dies,

(c) immediately before the death, the dwelling-house was not occupied by a spouse or civil partner of the tenant as his or her only or principal home,

(d) an express term of the tenancy makes provision for a person other than such a spouse or civil partner of the tenant to succeed to the tenancy, and

(e) there is a person whose succession is in accordance with that term,

then, on the death, the tenancy vests by virtue of this section in that person (and accordingly does not devolve under the tenant's will or intestacy).

(1D) Subsection (1), (1A), (1B) or (1C) does not apply if the tenant was himself a successor as defined in subsection (2) or subsection (3).

(1E) In such a case, on the death, the tenancy vests by virtue of this section in a person (“P”) (and, accordingly, does not devolve under the tenant's will or intestacy) if, and only if—

(a) (in a case within subsection (1)) the tenancy is of a dwellinghouse in England under which the landlord is a private registered provider of social housing,

(b) an express term of the tenancy makes provision for a person to succeed a successor to the tenancy, and

(c) P's succession is in accordance with that term.

]

(2) For the purposes of this section, a tenant is a successor in relation to a tenancy if—

(a) the tenancy became vested in him either by virtue of this section or under the will or intestacy of a previous tenant; or

(b) at some time before the tenant's death the tenancy was a joint tenancy held by himself and one or more other persons and, prior to his death, he became the sole tenant by survivorship; or

(c) he became entitled to the tenancy as mentioned in section 39(5) below.

(3) For the purposes of this section, a tenant is also a successor in relation to a tenancy (in this subsection referred to as “the new tenancy”) which was granted to him (alone or jointly with others) if—

(a) at some time before the grant of the new tenancy, he was, by virtue of subsection (2) above, a successor in relation to an earlier tenancy of the same or substantially the same dwelling-house as is let under the new tenancy; and

(b) at all times since he became such a successor he has been a tenant (alone or jointly with others) of the dwelling-house which is let under the new tenancy or of a dwelling-house which is substantially the same as that dwelling-house.

26

[

(4) For the purposes of this section–

(a) a person who was living with the tenant as his or her wife or husband shall be treated as the tenant's spouse, and

(b) a person who was living with the tenant as if they were civil partners shall be treated as the tenant's civil partner.

]

(5) If, on the death of the tenant, there is, by virtue of subsection (4) above, more than one person who fulfils the condition in subsection (1)(b) [ or (1B)(c)] above, such one of them as may be decided by agreement or, in default of agreement, by the county court [shall for the purposes of this section be treated (according to whether that one of them is of the opposite sex to, or of the same sex as, the tenant) as the tenant's spouse or the tenant's civil partner.] .

[

(6) If, on the death of the tenant, there is more than one person in whom the tenancy would otherwise vest by virtue of subsection (1A), (1C) or (1E), the tenancy vests in such one of them as may be agreed between them or, in default of agreement, as is determined by the county court.

(7) This section does not apply to a fixed term assured tenancy that is a lease of a dwelling-house—

(a) granted on payment of a premium calculated by reference to a percentage of the value of the dwelling-house or of the cost of providing it, or

(b) under which the lessee (or the lessee's personal representatives) will or may be entitled to a sum calculated by reference, directly or indirectly, to the value of the dwelling-house.