Passing on a tenancy
The law which says who has the right to succeed to a tenancy changed in 2012. Succession now depends on when the deceased tenant’s tenancy started.
A tenancy that started before April 2013 can be succeeded by the deceased tenant’s:
- civil partner
- unmarried heterosexual partner
- same-sex partner
- adopted child
A tenancy that started from April 2013 can be succeeded by the deceased tenant’s:
- civil partner (registered under the Civil Partnership Act 2004)
- Family members under the age of 18 can succeed to a tenancy. In such cases, a trustee would need to be agreed to hold the tenancy in trust for the child.
When a succession is allowed
A succession takes place if all the following conditions are met:
- the successor is a qualifying family member
- the deceased tenant must have been using the property as their only home before their death.
- the successor must have lived at the property as their main home with the deceased tenant for at least the 12 consecutive months before the date of death.
- the successor must have been living at the property as their main home with the deceased tenant when they died if they were their husband/wife or civil partner.
When a succession is not allowed
A succession cannot take place if:
- the deceased tenant had previously succeeded to the tenancy (including a person who was joint tenant and became a sole tenant after the other joint tenant died)
- there had previously been an assignment of the tenancy which includes assignment by mutual exchange or a property adjustment order under the Family Law Act the deceased person had been living alone
- the deceased tenant had left the property and was not using it as their only home
- the deceased tenant had left the property and been admitted to hospital or a residential home for long-term care or treatment
- a possession order had been granted which ended the tenancy
- the applicant for succession is unable to prove that they are a family member or that they live/had lived at the address.
If more than one person has the right to succeed
Only one person can take over the tenancy.
If there is a joint tenant, they will usually succeed the tenancy.
Where more than one person applies for succession and there is no remaining joint tenant, priority goes to the tenant’s spouse or civil partner.
If there is no spouse or civil partner who qualifies, the family members must decide between them who will succeed. If they are unable to agree, we will decide. Our decision is final.
Applying for a succession
Your housing officer will tell you whether you have the right to succession. They will ask you to complete a ‘Request for succession’ application form and tell you what evidence you will need to provide. This may include documents that prove your relationship to the deceased and the length of time you have lived at the property. The officer will contact other organisations and agencies, and teams within the council to confirm any of the information you have given. This may include the Department of Work and Pensions (DWP) and our Council Tax and Benefits Team.
We may also ask you for more information or to attend an interview. Following the loss of a family member we understand this may be a very distressing time for you. However, the checks we make and the questions we ask are necessary for us to make the right decision about the tenancy. The case may be put on hold if you do not attend interviews if requested or send us the information we need.
Succeeding to the tenancy
If your application to succeed is successful we will write to you to confirm your tenancy. We will also arrange to discuss with you your tenancy terms and conditions and give you your rent account number.
Your tenancy will be backdated to the date immediately after the tenant’s death.
Moving to a smaller property
If you are the spouse or civil partner of the deceased tenant you will be allowed to stay at the property.
However if you are another family member you will need to move to a smaller property if the property has more bedrooms than you need. Your housing officer will tell you this when your request to succeed is approved.
When deciding your housing need, we will not be able to consider other people, including children, who may visit or stay temporarily at the property. If you have to move, we will offer you a home that meets your needs. We will take into account the areas where you would prefer to live.
Moving out of an adapted property
We will also need you to move if you are living in a home that is accessible or adapted for a disabled person and there is no longer somebody in the household that needs this type of accommodation.
Refusing an offer of an alternative property
With there being such a demand for housing in Brent, most applicants understand why we need to move them to a smaller property. However, if you refuse our offer of a suitable home we will start legal action and apply for a possession hearing at the county court.
Not succeeding to the tenancy
If you live at the property but do not succeed to the tenancy, you will have to move out and find your own accommodation.
On a very limited number of occasions we will offer a tenancy to an applicant or household under our discretionary tenancy policy. You will be considered for re-housing if you:
- are named on the tenancy agreement
- have always lived with the tenant
- have no other housing alternative
- vulnerable (as defined by homelessness legislation)
- a parent to dependant children and a move will cause hardship
- have been living with the deceased tenant continuously for 20 years or more and will face hardship in securing alternative accommodation.
- If you meet the criteria and your current home meets your needs, you will be offered the tenancy of this property.
While we consider your tenancy
You must pay charges for living at the property while we consider your application for a discretionary tenancy. If you do not make payments and fall into arrears we will end our assessment.
If you do not qualify for a tenancy, or fall into arrears, you will need to leave the property as soon as possible. Our Customer Experience Team will give you advice and help you to take the next steps.
If you do not move out within a reasonable time, we will start legal action to take back the property.