Transferring a Council House Tenancy to a Family Member

Tenancy Succession Rules

The loss of a loved one is always a difficult time. It is important that time is taken to grieve before dealing with administrative or other matters.

An issue that frequently arises after someone’s passing is whether their family members can remain in the property or take over the tenancy. This is known as a succession.

There are two types of succession, statutory and discretionary. A statutory succession is a right set out in housing law, whereas a discretionary succession is based upon the terms of the tenancy and the Local Authority or Housing Association’s policy.

Can I transfer my council tenancy to someone else?

A key consideration is who is deemed a family member for the purposes of succession. The definition of a family member is set out in section 113 Housing Act 1985:

(1)A person is a member of another’s family within the meaning of this Part if—

(a)he is the spouse [or civil partner] of that person, or he and that person live together [as if they were a married couple or] [civil partners], or

(b)he is that person’s parent, grandparent, child, grand-child, brother, sister, uncle, aunt, nephew or niece.

(2)For the purpose of subsection (1)(b)—

(a)a relationship by marriage [or civil partnership] shall be treated as a relationship by blood,

(b)a relationship of the half-blood shall be treated as a relationship of the whole blood,

(c)the stepchild of a person shall be treated as his child, and

(d)an illegitimate child shall be treated as the legitimate child of his mother and reputed father

If you do not fall into the criteria, e.g. you are a cousin, then you will be unable to succeed unless there is a term of the tenancy that allows non-family members to succeed. For example, some tenancies may allow someone who acted as a carer to succeed.

It should be noted that only one person in the family can succeed the tenancy, so it would be important to agree who that would be if multiple people are entitled. If the family are unable to agree, then the Local Authority or Housing Association will decide.

Has there been a previous tenancy succession?

The person applying to succeed should confirm whether a previous succession has already taken place. The reason for this is that there can only be one succession by law, known as a statutory succession. If a statutory succession has already occurred, then any future succession can only be a discretionary one.

If a tenancy was granted to two people as joint tenants, when one of them passes away, the tenancy will automatically vest in the other person. This is known as the right of survivorship and counts as a statutory succession.

In addition, if a person previously succeeded a tenancy themselves, there can be no further statutory succession in relation to that tenancy. As above, it would have to be a discretionary succession.

It should be noted that if a tenancy is assigned to someone else, this will also count as a succession.

What kind of tenancy?

There are two types of tenancies Secure and Assured and these have different rules and are governed by different Acts. In addition, there are different rules across both types for tenancies based on if they were granted before 1 April 2012. This is due to the Localism Act 2011 which brought in certain amendments to the right to succession.

Secure Tenancies

• Succession set out in sections 86A – 89 Housing Act 1985

• For tenancies granted prior to 1 April 2012 the deceased tenant’s spouse/civil partner, or potentially a member of the deceased tenant’s family can succeed the tenancy.

• For tenancies granted after 1 April 2012, the deceased tenant’s spouse/civil partner can succeed. However, another family member can only succeed if there is a specific term of the tenancy permitting it.

• The spouse/civil partner needs to have been residing in the property as their main or principal home at the time of the tenant’s passing. For family members, or cohabitees, they need to have been residing as their main or principal home for at least 12 months prior to the tenant’s passing.

Assured Tenancies

• Succession set out in section 17 Housing Act 1988

• The right to a statutory succession only applies to the deceased tenant’s spouse/civil partner, or someone who was living with them as such.

• There can only be a succession to another family member/person if there is a specific term in the tenancy permitting it.

• For tenancies granted prior to 1 April 2012, where the tenancy agreement permits succession to other family members/person, this is a contractual obligation on the Landlord to grant a new tenancy. As a result, the tenancy will have its own right of succession in future.

• For tenancies granted after 1 April 2012, where the tenancy agreement permits succession to another person (as per section 17(1A) Housing Act 1988), this will take effect as a statutory succession.

Residing with the tenant

Once it is established the person seeking to succeed is a spouse/civil partner or family member, they need to evidence that they were residing with the tenant at the time of their passing (or for at least 12 consecutive months in the case of a family member). This is the same for both Secure and Assured Tenancies. It is not merely enough for the person to have spent time there; the property needs to have been their main or principal home.

The tenant could temporarily have resided elsewhere and the person looking to succeed could still be residing with them. For example, they both may have had to temporarily move out of the property due to disrepair works or some other unexpected issue.

Main or principal home

The person applying also needs to establish that the property was their main or principal home.

The case of Islington Borough Council v Boyle [2011] EWCA Civ 1450; [2012] PTSR 1093 was not a succession case but set out the relevant principles to be considered on this issue:

First, absence by the tenant from the dwelling may be sufficiently continuous or lengthy or combined with other circumstances as to compel the inference that, on the face of it, the tenant has ceased to occupy the dwelling as his or her home. In every case, the question is one of fact and degree.

In circumstances where it appears a tenant is not residing as their main or principal home; the following is relevant (para 55):

• the onus is on the tenant to rebut the presumption that his or her occupation of the dwelling as a home has ceased;
• in order to rebut the presumption the tenant must have an intention to return
• while there is no set limit to the length of absence and no requirement that the intention must be to return by a specific date or within a finite period, the tenant must be able to demonstrate a “practical possibility” or “a real possibility” of the fulfilment of the intention to return within a reasonable time;
• the tenant must also show that his or her inward intention is accompanied by some formal, outward and visible sign of the intention to return, which sign must be sufficiently substantial and permanent and otherwise such that in all the circumstances it is adequate to rebut the presumption that the tenant, by being physically absent from the premises, has ceased to be in occupation of it.

Usually, physical presence in the property is strong enough to establish that you live there, although this is not always the case. this was considered in the case of Freeman v London Borough of Islington [2009] EWCA Civ 536:

Ms Freeman had a flat of her own where she sometimes stayed and sometimes let friends stay. She started staying with her father 3 days a week to care for him as his health deteriorated. She then stayed with him full time in the year before his death. The utility bills for her own flat remained in her name. Some of her belongings also remained in her name. Her father’s housing benefit application also stated that he was a sole occupant. Ms Freeman argued that she had lived with her father 7 days a week in the year before his death. It was held that ‘residing’ with carries with it the intention of ‘making their home there’.

It will be a question of fact as to whether the person applying to succeed meets the evidential burden. Therefore, the next stage is to consider what evidence is relevant.

Evidence to support an application

The Landlord will first require evidence that you are the person’s relative, this can be done through providing a passport, driving licence or birth certificate. Second, the Landlord will require evidence that you were living in the property. Common documents that are provided include:

• Driving Licence
• Bank statements
• Utility bills
• Benefit letters
• Pension documents
• GP and Hospital letters
• Wage slips and employment contracts.
• The Electoral role

There are also other documents and evidence that can be provided to support an application, for example:

• Evidence of activity in the local area, e.g. shopping, public transport and cash withdrawals
• Supporting statements from neighbours confirming you’ve been living at the property.
• Record of deliveries to the property, e.g. Amazon or takeaways.

Other information

In the event that the application for succession is refused, there is usually a right to appeal in the Local Authority/ Housing Association’s policy. You are not limited to providing information or evidence on one occasion, if after refusal you obtain more evidence, this should be provided to the Local Authority/ Housing Association for consideration.

It is important to note that you are liable for ‘use and occupation’ charges in the property as long as you live there, even if the application is refused. The amount will be the same as the rent was, but it is not called rent as you would not be a tenant. ‘Use and occupation’ charges are due as you have a licence to reside in the property until a possession order is obtained and an eviction warrant executed.

The Landlord will likely service a Notice to Quit after learning of the tenant’s passing. Once the notice expires, and after an application has been refused, they will likely issue a claim at court to recover possession of the property.

Summary

If you or another family member are planning to apply to succeed a tenancy, you need to ask yourself the following questions:

1. Do you fall within the definition of a family member?
2. Has there already been a succession?
3. What type of tenancy did the deceased tenant hold and when was it granted?
4. Did you reside with the deceased tenant, either at the time of their passing (if a spouse/civil partner) or for at least 12 months consecutively before their passing (if a family member/other person entitled to succeed)?
5. Was the property your main or principal home?
6. Do you have sufficient evidence to prove you are entitled to succeed?

The above information is a general overview of what is required for succession. However, all applicants have different circumstances and varying levels of evidence to support their respective claims. At Osbornes we regularly advise on succession matters, so please get in touch if you require advice tailored to your circumstances and likelihood of success.

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