What happens to the occupiers of social housing when a previous sole or joint tenant dies? A Commons Briefing paper this month outlined the rules relating to secure council tenancies and the statutory rights of occupiers.

The current statutory framework allows for one statutory succession to a council or housing association tenancy in England.

At the time of death of the original secure tenant, the would-be successor must reside in the dwelling house 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. For anyone other than a spouse/civil partner, the putative successor must show that he or she has been residing with the late tenant for at least twelve months before his or her death. The rule states that ‘residing with’ means more than living with or staying at.

Entitled family members

For succession, a tenant’s entitled family members include spouses, parents, grandparents, children, grandchildren, siblings, uncles, aunts, nephews and nieces; including step-relations, half-relations and illegitimate children and people who live together as husband and wife.

If there is more than one qualifying person, the late tenant’s spouse or civil partner takes precedence but those who qualify must decide among themselves who will take over the tenancy. The landlord is entitled to choose if the family can’t decide, but there can’t be a joint succession.

The Localism Act 2011 amended succession rights, where the tenancy was created after 1 April 2012, people living with secure council tenants can only succeed if they are the spouse or partner of the deceased tenant. This has always been the case for succession in assured housing association tenancies.

Right to succeed

Secure tenancies created before 1 April 2012 are different – the right to succeed can be claimed by a member of the deceased’s family if they meet the criteria.

The statutory right to succeed a secure council tenancy can be affected by under-occupancy—the landlord can repossess the property if ‘suitable alternative accommodation’ has been offered to the tenant. Tenants have brought legal challenges relating to attempts to regain possession of under-occupied properties.

The Housing and Planning Act 2016 has measures which would further restrict the right to succeed to a secure tenancy to spouses and civil partners and those who live together no matter when the tenancy agreement was signed. When he introduced the new provisions in the Public Bill Committee, the minister, Marcus Jones, said the government saw no justification for keeping an inconsistent approach to pre and post 2012 tenancies when it came to succession rights.

These changes were associated with removing English local authorities’ ability to offer ‘lifetime’ tenancies to new tenants. When the social housing Green Paper, A new deal for social housing, was published in August, the government announced that it would not implement the ending of lifetime tenancies at this time. The Green Paper doesn’t refer to the measures on succession but the relevant provisions in the 2016 act have not been brought into force.

Finders International offers statutory will research for those who need to find and identify a person’s next of kin before a statutory will can be made. Find out more here.