One of the unexpected and perhaps unintended consequences of assured shorthold tenancies disappearing overnight and becoming assured tenancies is that assured tenants have succession rights, meaning that a landlord may not be able to regain possession of their property even if their tenant dies.
This article outlines the tenant death scenarios under the Renters' Rights Bill.
What happens if a joint tenant dies during the fixed term of an assured tenancy?
In this scenario, the surviving joint tenant would remain the sole tenant, and the tenancy would continue.
What about if a sole tenant dies during the fixed term?
If a sole tenant dies, the tenancy does not automatically end; instead, it would pass according to the tenant's wishes laid out in a will or intestacy rules if no will has been made.
In England, a landlord can also seek to recover possession by relying on ground 7 of the Housing Act 1988. Ground 7 allows a landlord to recover possession where a former tenant, who must have had contractual periodic tenancy or non-statutory periodic tenancy, has died within the 12 months before possession proceedings started and no one else living there has a right to take over the tenancy.
What happens if the tenant has a joint periodic tenancy and there is a death?
If one of the joint tenants dies, the general law applies, and the survivor becomes the sole tenant.
What if the occupier has a periodic tenancy and the spouse or civil partner was living with the sole tenant when they died?
Where the tenant was a sole tenant and immediately before their death, their spouse or civil partner was living with them, and it was their only or principal home, then the tenancy vests in the spouse or civil partner and not according to the tenant's will or any intestacy rules.
However, the tenancy will not vest in the spouse or civil partner if the deceased tenant was a successor. There are very specific rules in section 17 of the Housing Act 1988 that mean that a tenancy does not vest in the spouse or civil partner where:
- The tenancy was vested in the original tenant by virtue of section 17 (i.e., because the tenant was a spouse or civil partner on the death of their former spouse or civil partner) under a will or intestacy of a previous tenant or
- At some point before their death, the original tenant was a joint tenant and, before their death, became the sole tenant by survivorship, or the original tenant became entitled to an assured periodic tenancy after the death of a regulated tenant under the Rent Act 1977.
What occurs if a sole periodic tenant dies without a qualifying successor?
In this situation, the tenancy will devolve under the will or intestacy rules so that the landlord will be entitled to recover possession under ground 7 of the 1988 Housing Act. However, the landlord must begin proceedings no later than 12 months after the tenant's death or, if the Court directs, after the date on which, in the opinion of the Court, the landlord became aware of the tenant's death.
The reference to 'proceedings' for recovery of possession mean court proceedings rather than the service of any section eight notice.
The period of 12 months is calculated from the date that proceedings started. If the landlord issues possession proceedings relying on ground 7, then it is a mandatory ground for possession, and the Court must make an order without considering the reasonableness of the landlord's request.
Ground 7 also expressly sets out that the landlord's acceptance of rent from a new tenant after the former tenant's death does not create a new periodic tenancy unless the landlord agrees in writing to a change in the amount of the rent, the period of the tenancy, the premises that are let, or any other term of the tenancy.
It should be noted that if the tenant, i.e. the personal representative or the beneficiaries, is not occupying the property as their principal home, the tenancy would potentially cease to be an assured tenancy, and it would not be necessary to rely upon ground 7.
In that instance, a tenancy would be an ordinary common law tenancy that could be terminated by notice to quit.
Landlords should be aware that:
- If they have an assured tenant and that tenant dies, the succession to the new tenant will be automatic and the landlord cannot resist it.
- The landlord could find they have a new tenant that they did not originally sign up to have as their tenant.
- The tenancy continues for the life of the original tenant and their partner.
