Think Tank

Can you shed any light on this and what the proper procedure is for relatives succeeding to assured tenancies?

Under the 1988 Housing Act only spouses and partners (including same-sex partners) have a statutory right to succeed to an assured tenancy. Relatives who live with the tenant do not. However, under the 1985 Housing Act, the relatives of secure tenants do have a statutory right to succeed, if they were living with the tenant for a year before death.

The Housing Corporation expects registered social landlords to grant assured tenants rights equivalent to those enjoyed by secure tenants, so a contractual means must be adopted in RSL assured tenancies to enable relatives to "succeed".

Some tenancies try to achieve this by way of an assignment from the RSL. This is meant to work by the tenant agreeing that in the event of death they will assign the tenancy to the association, who will then hold it "on trust" for the relative. The problem with this is that there can be no assignment of the tenancy without a deed of assignment. Simply for the tenant to agree to assign to the RSL if they die is not legally sufficient.

Other tenancies talk about the association "transferring" the tenancy to the "successor" without addressing how the tenancy comes to be held by the RSL on the tenant's death.

The bottom line, legally, is that the only way a non-statutory "succession" can happen is by the grant of a new assured tenancy to the relative. The best way of achieving this in the tenancy agreement is to have a clause stating that the RSL will consider a relative who has been living with the tenant for a year before their death for a new tenancy.

Of course, one of the effects of granting a new tenancy is that the "successor" gains another right of statutory succession to his or her spouse or partner. This cannot be excluded because it is a statutory right.

Ironically, therefore, by following corporation guidance to ensure assured tenants have the same rights of succession as secure tenants, assured tenants actually end up with greater rights.

Nick Billingham, Partner and head of housing management litigation at law firm Devonshires

Trapped in the system
I separated from my wife in July 2001 and approached the council to advise it that I had to leave the property, and to ask for help in rehousing me. I was told it could offer me no help until I signed the property over to my wife.

I did this, only to be told that I had made myself voluntarily homeless. I had several meetings and conversations with staff at the council, but they are not prepared to offer me any help. I am now living in company accommodation provided to me on a caretaker's contract. This comes with its own set of problems, as I am desperate to leave my job, but if I leave, I have no home and will have made myself voluntarily homeless in the process, so would not be able to get help from the council.

I earn just over £13,000 a year, so I have no chance of buying a home. I don't qualify for shared ownership, am not classified as a key worker and could not afford to rent privately – except maybe a single room, which would mean I'd lose staying access to my two children.

I have contacted numerous housing associations, and have found only one that can offer me any help, although it cannot say when, if ever, I would be offered a home. It is based in another county so I would be alienated from my children.

This situation has caused me great stress and I have been suffering with depression. I am desperate for a solution, and it is not for want of trying that one hasn't arisen. Yet I am willing to pay rent, look after my property and be a good neighbour and tenant, and I have always paid my taxes.

Unfortunately this is a very common occurrence, where a person who is earning a salary, albeit a low one, does not qualify for any housing assistance from the council.

The council is only under a duty to rehouse a person who is unintentionally homeless and in priority need, which is defined as a pregnant woman, a person with whom dependent children reside, someone vulnerable as a result of old age, mental illness or handicap or physical disability, or someone homeless or threatened with homelessness as a result of an emergency such as a flood, fire or other disaster.

However, the council should be in a position to provide advice and assistance on getting access to accommodation that is available in the area.

Housing is a limited resource and all councils are constrained by the amount available. Also, the 1996 Housing Act reduced councils' obligations to provide secure housing for those who are homeless.

I would suggest making further contact with the council, perhaps through a housing advice centre, if there's one available, for advice on any benefits you may be entitled to towards renting privately.

In addition, seeking advice from your local Citizens Advice Bureau may uncover some more local options: they may be able to tell you about any charities, funds or schemes that help those who fall through the security of the council's homelessness policies.

Rosemary Hart, Partner and housing specialist, Trowers & Hamlins

In general, council housing waiting lists are open to all, so you should make sure that you are registered in any area you want to live, and get on as many housing association waiting lists as possible.

While you have free accommodation from your company, you should be saving for a deposit for somewhere else to live in the private rented sector. If you find suitable accommodation, you could get a pre-tenancy determination to calculate the rent and your housing benefit entitlement. Some housing organisations have rent deposit schemes that help people with little or no savings get access to private rented accommodation.

Depending on why you needed to leave your present job and whether there were any factors that might make you priority need, it would be worth you getting advice as to whether you would be eligible for support under the homeless legislation.

Advice is available from local housing advice centres or from Shelterline, a free, 24-hour telephone helpline staffed by trained housing advisers. It's on 0808 800 4444, or look online at www.shelter.org.uk.

Nick Murphy, Executive director of housing, communities and regeneration at Southampton council

I'm still confused about assigning tenancies to partners
Please could Catherine Hand clarify her response to the query "How should I confirm tenancy succession?" (19 March, page 43).

Hand states that a "where a sole tenancy is being changed to a joint tenancy, this should be done as an assignment from the sole tenant to the joint tenants".

I have always been led to understand that sole tenancies cannot be assigned in this way, although partners in a joint assured tenancy can assign to the other partner with the landlord's permission and if the tenancy agreement permits it, or if they are a qualified successor. I've tried to check this out but I seem to get conflicting information. I work for a stock transfer RSL and all of our tenancies are assured.

I have thought again about assignments from a sole tenant to that tenant and another, and I still think this is the right way to create a joint tenancy, although as I said before, it is not always done this way. The advantage of this method is that it makes it clear that the tenancy continues and both tenants will be jointly and severally liable for what the sole tenant was liable for before.

The consent of the landlord is likely to be needed, unless the assignment is the result of a court order – but that is unlikely.

Catherine Hand, Partner at solicitor Jenkins & Hand