Think Tank

When there’s no succession, how do we obtain possession?

We are considering the following action to be taken in this sort of case: if keys are handed in by a next of kin, we accept and no notices are served. If a person remains with no succession rights, we serve notices on the public trustee and the unauthorised occupier. If we don’t know if there is a next of kin and no one remains in the property, we serve a notice to quit on the public trustee.

Does this appear to be the correct way to deal with these cases?

Where a tenant dies and no one is entitled to succeed, the tenancy must still be brought to an end. This is done by serving a notice to quit in the prescribed form on the personal representatives of the deceased tenant, on the public trustee and at the property.

If the property is occupied, it is necessary to issue proceedings and obtain an order for possession that must be enforced by way of warrant for possession.

If the property is occupied by someone who is not entitled to succeed, proceedings for possession must be taken and enforced. The most straightforward way, which avoids more complex arguments, is to serve a notice to quit. That remains the most sensible route even if the keys are handed back by the personal representatives. So the advice you received is correct.

Rosemary Hart Partner and housing specialist, Trowers & Hamlins

Can we ask this man to move?

She was a secure tenant but has now died and he has the right of succession. We would like to rehouse him in an alternative property, partly because he is under-occupying.

What would we do? Do we allow him to succeed the tenancy? And if he refuses to leave, should we apply for a possession order under ground 13 of the Housing Act or would we apply for possession without him actually succeeding?

And what is the legal status of someone who has succession rights but hasn’t signed a tenancy agreement? Do they automatically succeed by virtue of having the right to succeed?

The succession happens automatically as a matter of law at the point of the mother’s death. There is no need for the landlord to grant a new tenancy – indeed to do so would be wrong as the original tenancy continues unaffected save for the change in tenant.

The proper course is to attach a memorandum to the tenancy agreement confirming that the tenancy has been succeeded to, with the new tenant signing to acknowledge that they understand that they are bound by the terms and conditions of the tenancy. In this case, the son has already succeeded so the association can neither require him to sign a new tenancy nor treat him as not having succeeded.

Ground 16, the “under-occupation ground”, could be used here. It applies only to successors, although not spouse successors. The landlord must offer suitable alternative accommodation and a court must be satisfied that it is reasonable to require the successor to move: factors would include his age, the length of his occupation and his needs. A notice of seeking possession using this ground must be served no less than six months and no more than a year after the original tenant’s death.

So the proper course for you is: make an offer of alternative accommodation; if it is refused, serve a notice of seeking possession and apply to court.

It may be that a number of offers need to be made and on each occasion the landlord should require the tenant to justify his/her refusal. A suitable property will have to be available at the time of the hearing. 

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