When a council tenant dies, the secure tenancy passes to the tenant's husband or wife, partner or a family member. This is called succession, and the person who gets the tenancy is called the successor.

A successor who was not the tenant's spouse must have been living at the property as their only or main home for at least 12 months before the tenant died.

Succession to a tenancy can happen only once. So you cannot be a successor if succession has already occurred.

How do you define family member?

A family member is defined as the deceased tenant's parent, grandparent, child, grandchild, brother or sister, aunt, uncle, niece, nephew, step relations and half relations (a half relationship is where you are related to someone through your mother or father but not both). A carer cannot be a successor.

What if the tenancy was held jointly?

If the tenant who dies was a joint tenant, the tenancy continues and remains with the surviving joint tenant provided that person continues to live there as their only or main home.

This counts as a succession.

When this joint tenant dies, there can be no further succession.

What if there are several people who could be the successor?

By law, preference always goes to the tenant's spouse or partner if they were living in the home as their only or main home at the time of the death.

If there is no spouse or partner and there is more than one family member who could succeed to the tenancy, then the family members must decide between them who will succeed. If they cannot agree, we will decide for them.

Can a child be a successor?

Yes, a child can succeed the tenancy but an adult must hold the tenancy on trust until the child reaches the age of 18.

Is a new tenancy created when a person succeeds?

When a successor takes the tenancy, there is no new tenancy. This is because the successor is taking over the original tenancy automatically under the rules. So the interest in the property and the obligations of the tenancy (that is, both the rights and the responsibilities) pass to the successor. For instance, any rent arrears will still be owed by the successor.

What happens if a tenant dies and there is no one to succeed?

If a tenant dies and there is no one to succeed, the tenancy does not normally end automatically.

The executor of the estate (usually the person named as executor in the tenant's will, who deals with their possessions) can give up the tenancy to the Council, but if they don't do this we are not entitled to possession while the tenancy still exists, so the tenancy continues.

However, the tenancy will no longer be secure, so we can serve a Notice to Quit on the executor or on the deceased tenant's personal representative if they have taken out probate or letters of administration (these are the legal documents entitling the personal representative to deal with the deceased person's estate).

If no one is administering the deceased tenant's estate, the Public Trustee takes over and we can serve notice on the Public Trustee to bring the tenancy to an end.

For more on what to do when someone dies, please get advice - the Waverley Citizens Advice Bureau may be able to help.

What happens if I succeed to the tenancy and the property is larger than I reasonably need?

If a tenant dies and you as a family member succeed to the tenancy (where there is no spouse or partner to succeed) and we judge the property is larger than you need, then we can, after six months from the date of death, seek possession of the property.

We will offer you suitable alternative accommodation.

We can serve a Notice of Seeking Possession after six months and before 12 months since the tenant's death. If you do not move out and into the alternative accommodation offered, we will apply to the county court for possession of the original property.

What happens when the tenant dies and the family member left in the property cannot succeed?

When the tenant dies and that tenant was a successor, then the tenancy cannot be succeeded to again.

This means that if you were related to, or a carer of the deceased tenant and lived in the tenant's home, the tenancy cannot pass to you.

If we think you are in housing need, we will encourage you to apply for housing for yourself.

If the property you were living in is larger than you need, we will offer you smaller accommodation. However, if you are not in housing need, then you will probably have to find other accommodation yourself and we will advise you to look for private rented accommodation or other housing.

If you refuse to move out, we may have to take legal action to remove you.

Page owner: Caroline Ottery. Last updated: 26/09/2017 14:09