The heir may not be as apparent as you think

Mr Burton (not his real name) complained that after his mother died in a property belonging to an association he was not allowed to succeed to the tenancy. Instead, the association granted succession to her partner Mr Turner (not his real name). In so doing, the association ignored the fact that both claimants were entitled to equal consideration.

When his mother passed away, Burton sent the association a copy of the death certificate and said that he wished to succeed to her tenancy. He was then advised to provide proof of residence for the previous 12 months, which he did, covering the preceding two years. But in the interim, advocates acting for Turner requested confirmation from the association that he would succeed to the tenancy as her common law husband; the advocates said nobody else had lived with Mrs Burton for some 20 years.

Burton told the association Turner had not in fact been his mother’s partner and that he owned property elsewhere. He referred to a benefit application submitted by Turner a few years earlier stating he did not live in the flat in question and did not have a partner.

Soon afterwards the association told Burton he would not succeed to his mother’s tenancy. A few days later Turner signed the succession papers and confirmed that he owned a flat but claimed that he had not lived there for many years. He also provided letters from a number of friends and associates testifying to his relationship with Mrs Burton.

Family argument

It was clear that Mrs Burton was actually a secure tenant by virtue of the Housing Act 1980 (as amended by the Housing Act 1985) because she had been living there for more than a decade. She did not sign a tenancy agreement with the association, but that didn’t affect her tenure status.

The Housing Act says that for secure tenancies, cohabitees or people living together as husband-and-wife are counted as family members. They do not qualify as spouses. Like other relatives, in order to succeed to the tenancy they must prove continuous residence in the deceased tenant’s home for at least the 12 months preceding the death. By contrast, the spouse rule for assured tenancies under the Housing Act 1988 does include a person who lives with the tenant as a wife or husband.

Relationships outside marriage are a vexed legal question and cohabitees still aren’t regarded as spouses

As a matter of good practice landlords have long had the option of inserting a clause in their tenancy agreements granting contractual succession for cohabitees and same-sex couples. But relationships outside marriage remain a vexed legal question and, despite significant developments in case law, for the succession rights of same-sex couples (particularly Mendoza v Ghaidan [2002] EWCA), cohabitees are still regarded as family members rather than spouses.

Since Mrs Burton and Turner were not married he did not meet the statutory definition of a spouse for the purposes of succession to a secure tenancy. So the association was wrong to treat Turner as a partner and give his claim precedence.

It should have required both him and Burton to prove they qualified to succeed and requested proof of residence. Staff should then have weighed evidence, including the fact that Turner and Burton owned property elsewhere, to decide whether either qualified to succeed and whose claim had primacy.

The ombudsman also discovered it was unlikely information on record from either claimant would have been sufficient to decide the dispute one way or the other. Burton had given circumstantial evidence of his whereabouts before his mother’s death, and argued that any papers to support his case had probably been destroyed in the flat, which he could not access. The electoral register showed Burton had only been recorded as a resident in the flat since his mother’s death. Turner had given documentary evidence of his previous residence but mostly in the form of personal statements from friends. And when the association’s own complaints panel met to deal with the case, staff said they had obtained legal advice on the final decision – but no record of that was found in the files.

The ombudsman therefore decided it was not possible to conclude which family member had a better claim, if they had any at all. It found maladministration and ordered the association to review its succession policy to ensure adherence to law. It criticised the poor administration and record keeping for the case and awarded Burton compensation, but it could not confirm that Burton should have succeeded to his mother’s tenancy.