These suggestions for reform are welcome but, even if they are accepted by the government, it may be some time before they take effect. In the meantime, therefore, it may be useful to revisit the basics of the current rules on succession to secure and assured tenancies.
In order to succeed to a secure or an assured tenancy, the successor must have occupied the premises as their only or principal home at the time of the death of the tenant.
Secure tenancies
In the case of a secure tenancy, the successor must also either be:
- The tenant's husband or wife. In this context that means someone who was legally married to the deceased tenant; or
- A family member who has resided with the tenant for the 12 months before the tenant's death (the 12 months need not all have been spent in the property in which the tenant died). Cohabiting partners of the opposite sex are treated as family members. Cohabiting partners of the same sex have no rights of succession.
If these rules result in more than one person qualifying to succeed to the tenancy, the spouse will take first priority. If there is no spouse, the other family members must agree between them who will succeed. If they cannot agree, the landlord must decide.
Assured tenancies
In order to succeed to an assured tenancy, a person need not have resided in the property for a minimum period, but must be the spouse of the tenant. "Spouse" is defined so as to include a person of the opposite sex who was living with the tenant as husband or wife, but not a gay partner. No other family members are entitled by statute to succeed.
Only the tenant’s spouse can succeed to an assured tenancy. ‘Spouse’ is defined as a person of the opposite sex who was living with the tenant as husband or wife, but not a gay partner
Of course, RSLs usually grant assured tenants extra contractual rights of succession, which are at least as favourable as the rights of family members of secure tenants. Some local authorities also do this. Because these rights stem from the tenancy agreement rather than from statute, they will depend on the actual terms of the tenancy. There may be difficulties for tenants who have inherited the tenancy or succeeded to it in enforcing contractual guarantees since they were not parties to the original contract. However, since the reason for including such extra rights is because social landlords wish to extend the benefit of succession to a wider class of individuals, this is unlikely to be a problem in practice.
Even if all of the succession requirements are satisfied, a person will not be able to succeed to a tenancy if the tenant who died was already a successor. In other words, secure and assured tenancies carry with them only one right to succeed. The Law Commission has proposed that this rule should be relaxed in certain circumstances, enabling a child to succeed to a tenancy which has also passed by right of succession from one parent to another.
Provided there is someone qualified to succeed the tenant, the tenancy will vest in that person automatically by virtue of the statute. This means that without the landlord or the tenant signing any new agreement, the successor becomes the tenant. In fact, if the landlord and the tenant do sign a new agreement or amend the old one, secure or assured status may be lost and the tenant may become an assured shorthold tenant.
A tenancy does not automatically come to an end simply because the tenant dies. The tenant can leave the tenancy to another person in his or her will, or it may pass automatically to another person under the intestacy rules. If the tenancy retains its secure or assured status (because there is an individual qualified to succeed), the landlord will be in the same position in relation to that tenant as it was towards the original tenant. If, however, secure or assured status has been lost, the tenancy becomes a simple (usually a periodic) contractual tenancy. In that case, the landlord should have little difficulty regaining possession by following the contractual rules for terminating a periodic tenancy.
Clearly, therefore, the right to succession is an important one for tenants, and the current rules discriminate against individuals in homosexual relationships by denying it to them. It is to be hoped that the proposals for reform result in the removal of this unfairness.
Source
Housing Today
Postscript
Emma Tarran is a solicitor at Winckworth Sherwood Solicitors
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