How to succeed as a tenant

In one way, this is surprising as the basic law is not complex: the person who wants to succeed must occupy the dwelling as their only or principal home. For both assured and secure tenants, spouses can succeed. For secure tenants, if there is no spouse then a member of the family can succeed, so long as they lived with the deceased tenant for the 12 months before he or she died. People living together as husband and wife count as members of the family and so have to fulfil the 12-month requirement to succeed to a secure tenancy. For assured tenants, people living together as husband and wife count as spouses. For them, there is no succession right for members of the family by statute, but many housing association tenancies give one. Once there has been one succession, there cannot by statute be another. If they are joint tenants and one dies, that counts as a succession.

However, even where the law is straightforward, people's lives are not. The law on succession does not always reflect today's complex family structures. People who feel strongly that they should be allowed to succeed sometimes cannot. Housing shortages in many parts of the country mean the right to succeed is incredibly precious – for many people, if they have no right to succeed, they will have to rely on the private sector and spending much of their lives as assured shorthold tenants.

While the statutes that govern succession may be clear, many housing associations (and a few councils) give extra succession rights in their tenancy agreements. Finally, both housing associations and local authorities may have policies that go further than the law – which can cause confusion for staff and tenants.

To answer succession questions you need a detailed tenancy history, a copy of the tenancy agreement, a clear view of the relationship of the claimant to the deceased and a copy of the tenant's handbook, if there is one, or the succession policy if there is one.

How did the deceased tenant get the tenancy they had when they died? This question will establish whether they are a successor or not and it is carefully worded – it is the tenancy the person had when they died that matters. They might have succeeded to the tenancy of a parent – there might have been a possession order and the tenant allowed to stay on and pay rent in a way which creates a new tenancy.

Many people who have no right to succeed will have to rely on the private sector as assured shorthold tenants

Exchanges
If a successor to a secure tenancy exchanges tenancies, they are still a successor. There is no such provision for assured tenants as there is no statutory right of exchange – but there is often a contractual right to exchange. These do not normally say what happens if one party to the exchange was a successor – an example of the difficulties of combining statute and contract.

Even if there has been a succession, the tenancy agreement may have given a second right of succession – in which case the history will have to go back further – or there may be a policy to allow second successions – though social landlords have to be clear how this meets any requirements they have to allocate homes fairly and to people in housing need.

Who can succeed? Husbands, wives and cohabitees are covered. Same-sex partners were denied rights under the 1985 Act by the courts but given them under the Rent Act and will be given rights by the Housing Bill – though as with cohabitees, they are treated as a member of the family and must have been living there for 12 months before the death of the tenant. When succeeding to an assured or Rent Act tenancy, they will count as a spouse or cohabitee.

The 12-month rule for a family member, by the way, does not mean they actually have to be living in the dwelling when the previous tenant dies. They may have left temporarily, perhaps to look after another relative or because of a problem in the relationship – but if the dwelling was still their only or principal home they can still succeed.

Family members
Who counts as a member of the family? The 1985 Act has a definition for secure tenants. Some assured tenancy agreements that give rights to members of the family use this definition, others have none or a different one. By law, some people who might want to succeed won't – no carers, no cousins who have been there for thirty years. Step-children are covered but the child of a cohabitee or same-sex partner will not be – another place where marriage can matter. Under-18s can succeed – see Kingston upon Thames RLBC v. Prince (1998) 31 HLR 794 There may be more than one member of the family. For secure tenants, the inclusion of cohabitees and same-sex partners in this category creates the very real possibility of the partner of the deceased tenant battling it out for the tenancy with the deceased tenant's child. If they can't agree, the landlord has to decide – and this is not something most want to get involved with.