Some council tenants have the right to “succeed” to the tenancy on the death of their partner or loved one. This means that the tenancy passes to the “successor” who has the right to continue to live there.
What happens when that successor dies?
The law as set out in the Housing Act 1985 allows only one succession but some councils have been more generous in the past. For example, Southwark and Waltham Forest issued tenancy agreements in the 1980s that gave more than one succession. They came to regret this and have later tried to change their agreements to remove the additional right.
It is worth checking whether the council followed the correct procedures to take those additional rights away. Section 102 of the Housing Act states that a tenancy can be varied in only one of two ways:
- by agreement between the landlord and the tenant,
- by following a procedure set out in section 103 of the Housing Act 1985.
Where the variation is in relation to a term other than rent, the section 103 procedure is a two-stage process, consisting of a consultation followed by the variation.
At both stages the council must write to every tenant and their letter must be accompanied by a detailed explanation of the variation.
We recently represented a family who for more than thirty years had lived with their grandmother Mrs G. Mrs G had succeeded to a Southwark council tenancy on the death of her husband. At the time that she inherited the tenancy, she had the right to pass it on for a second time. Unknown to the family, Southwark had issued a new tenancy agreement a few months before Mrs G died, which only allowed one succession. However the tenancy file had been lost and there were no papers in the house that showed that Mrs G had been notified by Southwark of the change.
We argued that Southwark could not prove that they had correctly followed the necessary procedures to take away Mrs Gs right to pass her tenancy to her relations. In the end Southwark have agreed to give a new tenancy to Mrs Gs daughter.
If you are living with a relative who wants to pass their council tenancy on to you, it is very important that you encourage your relation to keep all documents in relation to the tenancy, however old these are.