It is now more than 28 years since the Housing Act 1988 came into force, introducing with it the Assured Tenancy and foreboding an end to the ‘regulated tenancies’ of the past. I dare say that there are many reading this article that were not even yet born on 15th January 1989. However, there do still remain many tenancies that pre-exist that date, so it is important for those managing properties to know how they differ to Assured tenancies created under the Housing Act 1988. Most notable, it is important to recognise when the right to succession applies on a Rent Act tenancy and how this right operates.
Put simply, the right to succession refers to the right of a tenant’s surviving spouse or another member of their family to retain a tenancy of the property in question even after the tenant has died. So how does it work? Well that depends on who you are.
A surviving spouse of the tenant can succeed to a statutory (i.e regulated) tenancy. Schedule 1 to the Rent Act 1977 states that any surviving spouse or civil partner of the original tenant, if they are residing in the dwelling-house immediately before the death of the tenant, will succeed after the tenant’s death to a statutory tenancy. The definition of spouse or civil partner is extended to include common law relationships. In some (albeit very rare) circumstances, there may be more than one person who qualifies under this definition, however the wording of the Act is such that only one of them can succeed to the tenancy.
Note that the Act does not specify how long the surviving spouse or civil partner must have been residing in the property before the tenant’s death. Note also that it is possible to succeed to a statutory tenancy as a surviving spouse or civil partner even if the tenant had in fact left the property before they died, as long as they retained the tenancy of the property.
Other members of the family
It is also possible for another member of the deceased tenant’s family to have the right of succession to a tenancy but they will be entitled to an assured tenancy. Schedule 1 to the Rent Act 1977, where a person who was a member of the original tenant's family was residing with him in the property at the time of and for the period of 2 years immediately before his death then, after his death, that person or if there is more than one such person shall be entitled to an assured tenancy of the dwelling-house by succession. This only applies where there is no spouse or civil partner living at the property.
Unfortunately and rather unhelpfully the Rent Act 1977 does not specify what is meant by a member of family but this is usually interpreted widely so that even distant relatives can enjoy this right.
In addition to the above, it should be noted that a second succession is possible. So, if your regulated tenant dies and is succeeded by their spouse or civil partner, it is possible for a member of the family to succeed to an assured tenancy. This second successor must have been a member of both the original tenant’s family and a member of the successor’s (i.e the spouse or civil partner) family and must have been living with the successor for at least 2 years prior to their death.
So, put very simply, upon death of a tenant under a regulated tenancy, their spouse or civil partner will simply ‘replace’ them in the tenancy and will enjoy the same security of tenure as the original tenant. However, any family member succeeding to the tenancy will have the right to a new assured tenancy. This is not a continuation of the deceased’s tenancy but a new tenancy in its own right. The family member will have the usual security of tenure that goes with an assured tenancy, in other words their landlord can not gain possession with the service of a section 21 notice but they can rely on any of the grounds in Schedule 2 to the Housing Act 1988.
Hopefully this article will simplify a somewhat complicated hangover from the pre-Housing Act 1988 era.