Many people live with and care for a family member tenant of a housing association or council property, with the expectation that they will be able to remain there and take over the tenancy if the tenant should die.

There are various requirements in order to take over, or succeed, a tenancy, and these differ depending on whether the tenancy is secure (council or some old housing association) or assured (usually housing association), when the tenancy began and the policy of the council or housing association.  Secure tenancies are dealt with here.

Even if you meet the requirements and succeed to a secure tenancy the council or housing association may still bring possession proceedings against you if you succeeded to the property from a family member. They may bring proceedings if the property is larger than you and the family members living with you need. They may not bring proceedings against you if you have succeeded from a spouse, civil partner or someone you have been living with as their spouse or civil partner.

If the council wishes to bring possession proceedings to move you to a smaller property they must serve a notice or begin proceedings no sooner than six months after the death of the previous tenant and not later than 12 months after the death. They in effect have a 6 month window to start the court proceedings. If they do not do so within this period they will be too late. If the council have missed their window of opportunity because they did not know that the tenant had died, the court may order that the window runs from the date that the council became aware of the death.

The court will only agree to make an order for possession and evict you from your current property if they agree that it is reasonable to do so and there will be another suitable property to move you to.

The court must also consider:

{C}·The age of the tenant i.e. if you are old and have lived in the property a very long time this will be in your favour.

{C}·How long you have lived in the property as your only or main home. Again, the longer the better.

{C}·Any financial or other support you gave to the previous tenant.

When deciding how many bedrooms you need, both to decide whether your current property is too big and whether the property they offer you instead is suitable, each council will work from its own allocation policy.

Unfortunately, given the shortage of council properties, the court is likely to find that it is reasonable to evict you and offer you somewhere else unless there are particular circumstances which mean that you need to stay in your specific property. For example, if you are very vulnerable and your mental or physical health will be damaged by moving then you may be allowed to stay in your property, even if it has more bedrooms than you are entitled to under the council’s allocation scheme.  Every case should be decided on its own particular facts.

If you are eligible to succeed to a property then the existing tenant can assign it to you before their death, as long as the council agrees. If a property was assigned prior to death then the council could not seek possession proceedings to downsize the tenant. However, they may not agree to an assignment if the property was much larger than the incoming tenant needed, or specially adapted for disabled people. See Shelter’s website for a comprehensive guide to assignment:

http://england.shelter.org.uk/get_advice/social_housing/transfers_and_exchanges/assigning_a_tenancy.