#5250 - Statutory Succession - Landlord and Tenant Law

Statutory Succession

Under the original Rent Act 1977

Security of tenure could last for three generations. There could be first succession to a surviving spouse or, in the absence of such, to a member of the tenant’s family. If the successor was a spouse then merely had to be living in the house immediately prior to the death. If it was another family member then had to be there for 6 months immediately prior to the death.

A second succession could then occur on exactly the same terms as the first.

Impact of HA 1988 on protected tenancies

Where the relevant death occurred after 1989 then the amended rules for succession to protected tenancies apply.

First succession could be to a surviving spouse if living in the property immediately prior to the tenant’s death or, if no such spouse, then to a member of the tenant’s family who resided in the property with the tenant for at least 2 years prior to the death. If the first successor is a family member then they shall succeed to an assured tenancy and there shall be no further statutory succession (HA 1988 s.17(2)(c))

If there are two or more parties entitled to succeed then they may decide between them who shall succeed or if they cannot then the court will decide.

A waiver of the right to succession by a potential successor is not an assignment (Clare v. MacNicol)

A second succession can only take place if the original tenant died before 1989 or if the first successor was the tenant’s surviving spouse. The second succession must have been to a member of the original tenant’s family AND a member of the first successor’s family and have resided with the first successor for 2 years immediately prior to the first successor’s death.

Protected tenancies are now VERY rare.

Statutory succession to assured tenancies before April 2012

The old law still applies to all assured tenancies in existence prior to April 2012, the changes do not have retroactive effect.

The original HA 1988 did not make any provision for statutory succession to a fixed assured tenancy. These will devolve under the old tenant’s will. The new tenant will have the same security of tenure as his predecessor provided he occupies as his only or principal home.

For a periodic assured tenancy, Ground 7 allows a mandatory possession order provided proceedings are commenced within 12 months.

The proceedings must have actually started within the 12 month period. It is not sufficient for notice to have merely been served. If proceedings are not started within 12 months then the tenancy benefits from all the protection accorded to the original tenant (Osada)

But Ground 7 does not apply in situations covered by HA 1988 s.17

Where a sole tenant dies, he was not himself a successor and immediately before the death his partner was occupying the dwelling house as his only or principal home then he shall succeed the tenant and the tenancy will not devolve under the tenant’s will (HA 1988 s.17(1))

A tenant is a successor if the tenancy was vested in him either by HA 1988 s.17 or under the will of the previous tenant by application of survivorship rules OR he was a successor to a protected Rent Act tenancy and given an assured tenancy under s.39(5) (HA 1988 s.17(2))

If the tenant was at some point a successor then he cannot avoid the operation of the HA 1988 s.17(1)(c) bar to succession by simply having a new tenancy (HA 1988 s.17(3))

If more than one potential successor exists then they may decide between them who shall succeed or the court shall decide (HA 1988 s.17(5))

Statutory succession under HA1988 s.17(1) is only available to the tenant’s surviving partner and not to any other family member. But surviving partner can include unmarried cohabitees (HA 1988 s.17(4)) and gay partners cohabiting.

Two particular issues regarding statutory succession by unmarried partners have arisen: homosexual couples and the degree of stability required.

• Homosexual couples

Fitzpatrick v. Sterling (House of Lords, 1999)

A person living as wife or husband did not include gay couples, but a gay person could be a member of the family for the purpose of a Rent Act protected tenancy.

Lord Slynn said that there should be a degree of mutual interdependence, of the sharing of lives, care and love. If these are proved then the person is a member of the tenant’s family.

Lord Nicholls said that if there is a stable and permanent sexual relationship then the person is a family member regardless of whether homosexual or heterosexual.

But the House held that to enable gay partners to succeed to an assured tenancy would require intervention by Parliament.

Human Rights Act 1998 was such action by Parliament.

The Court of Appeal held that the words actually meant AS IF they were wife or husband. The discrimination between homosexual and heterosexual couples was not justified and not allowed. A homosexual couple should be treated as if they were husband and wife (Ghaidan)

The Civil Partnership Act 2004 confirms that homosexual couples are to be treated on equal terms with heterosexual couples.

However although there is no longer any discrimination or differentiation on the basis of sexual orientation, it is still possible to privilege a sexual relationship over a platonic one. Persons who live together in a loving but completely platonic relationship with no sex cannot be seen as living as if they were husband and wife (Sharratt)

• The degree of stability and commitment required

Whether homosexual or heterosexual, if there has not been a formal commitment through marriage or civil partnership then the surviving partner must prove an appropriate degree of stability to come within the scope of HA 1988 s.17(4), which allows a person to succeed if living as if they were husband and wife.

There is no single definition or test, but generally good indicators will be that the persons are openly living together, the relationship is one of mutual lifetime commitment rather than simply friends or lovers, the relationship has been presented to others as being of permanent intent and the parties have a common life both domestically and socially (Nutting v. Southern Housing)

The indicators in Nutting have been approved of by the CofA, but it was also stated that they are not an exhaustive list and each case is to be considered on its facts. At its heart there must be a serious public commitment to have and hold, love and cherish until death. They should share their lives, bearing equal responsibilities for any children and offering each other love, commitment and support (Amicus Horizon)

Statutory succession to assured tenancies after April 2012

The Localism Act 2011 caused significant changes to the law relating to statutory succession when the landlord is a housing association. If the landlord is a private individual then Localism Act 2011 has no effect.

If the landlord is a housing association and there is no surviving partner AND there is an express term in the tenancy for another party to succeed then this can happen provided he was living there immediately before the death (HA 1988 s.17(1A))

If the landlord is a housing association then there can be succession to a fixed term tenancy of more than 2 years by a partner who, immediately before the death of the tenant, was occupying the dwelling house as his only or principal home (HA 1988 s.17(1B))

This is the first time that succession has been available for a fixed term tenancy, prior to LA 2011 it was only a feature of periodic tenancies.

If there is a fixed term of more than 2 years and an express term for succession by a person other than a partner then if there is a partner and the person has occupied for 2 years prior then he shall succeed (HA 1988 s.17(1C))

Succession will not be available if the tenant was himself a successor as defined in HA 1988 s.17(2) (HA 1988 s.17(1D))

It is only possible to succeed a successor if the landlord is a housing association and there is an express term allowing such (HA 1988 s.17(1E))

The key changes are:

• Where the landlord is a housing association then succession can apply to fixed term benefits of 2 years or...