Section 87 of the Housing Act 1985 sets out who may succeed to a Secure tenancy.
This states that a person is qualified to succeed if he or she occupies the property as his or her only or principal home at the time of the tenant’s death and is either:
The tenant’s spouse
Another member of the tenant’s family who has resided with the tenant for the twelve months ending with the tenants death. Family members include husband/wife, parents, grandparents, children, grandchildren, brothers, sisters, uncles, aunts, nephews and nieces. Step and half relatives are treated as full blood relatives.
It is SADC policy that a partner (including same sex), who lived with the tenant for the twelve months ending with the death of the tenant, should be treated as a spouse for the purposes of this procedure.
Section 87 of the Housing Act 1985 also details that a person cannot succeed to a tenancy if there has already been a succession. Therefore, there can only be one succession to a Secure Tenancy. Section 88 details the circumstances in which a person will become a successor:
The tenancy passed to them in accordance with the Housing Act, when the tenant died.
In certain circumstances when a fixed term tenancy comes to an end.
When a joint tenant has become a sole tenant.
If the tenancy has been assigned to the tenant in accordance with the Matrimonial Causes Act 1973 and the person assigning the tenancy over was already a successor.
If an assignment takes place under section 91 of the Housing Act 1985 (assignment to a person who would theoretically qualify to succeed if the tenant would have died at the time of the application for the assignment)
A person who is a successor is still a successor if they transfer to another SADC property, and if they carry out a mutual exchange to another property.
When there is a joint tenancy and one of the tenants who is already a successor dies, the other remaining tenant still gets passed the sole tenancy by survivorship. This then counts as a succession.
On receipt of an enquiry or application to succeed to a tenancy, the Application for Succession Tenancy form Appendix 1) should be issued. Where necessary proof of occupation should be requested going back at least twelve months prior to the tenant’s death. Council Tax and Housing Benefit records are not sufficient on their own. In some cases a home visit may need to be carried out.
Once the form has been returned the Management Officer should thoroughly check the house file for details of any previous succession and then present the details to the Area Team Leader for a decision.
The decision will be made in accordance with the following criteria, if there is no right to succeed and/or we will be asking someone to move from their current accommodation, this information should be conveyed wherever possible in person.
When a spouse (see Intro for SADC policy on this) qualifies to succeed, the tenancy will be transferred to them regardless of property size. Please use letter Appendix 2.
When a non-spouse relative qualifies to succeed but lives in a property which exceeds their housing need by one bedroom or more they are to be offered accommodation that matches their need. If the successor wishes to remain, this should be referred to the Housing Review Panel for a decision. If it is decided that alternative accommodation is to be offered and it is necessary to take possession action, the NOSP can only be served after 6 months has passed from the tenants death and no longer than 12 months. The moving grant will be payable.
When the occupant does not qualify to succeed, a decision will be made by the Area Team Leader in consultation with re-housing, as to whether they should be allowed to remain, be offered alternative accommodation, or referred toCourt for possession, with no offer of alternative accommodation. This decision should be based on all the facts at hand and the timing of any action should depend on the circumstances of the case. The matter should always be dealt with very sensitively and sympathetically. If the applicant wishes to challenge this decision, the matter must be referred to the next Housing Review Panel.
If an alternative property is to be offered, the applicant must complete a Housing Register form that should be passed to re-housing.
In these non-qualification cases it is always necessary to serve a Notice to Quit on the appropriate person as soon as possible, (see the Terminations procedure). Wherever possible this should be done in person, with a full letter of explanation, giving the reasons for the NTQ, stating that any payments received after the expiry date will be for use and occupation only and recommending that the applicant seeks independent legal advice.