Who will succeed?
If a tenant dies, the tenancy vests in the surviving joint tenant regardless of where they live, says Yetunde Dania
The case of Solihull Metropolitan Borough Council vs Elain Hickin (Inside Housing, 6 August) demonstrates that social landlords should thoroughly examine succession requests.
The council granted a secure tenancy to Ms Hickin’s mother and father. A number of years later the marriage broke down and the father left. Ms Hickin and her mother continued to live at the property. Following the mother’s death, the council served a notice to quit on Ms Hickin and issued possession proceedings.
The council argued that on the mother’s death, the tenancy was vested in the father by way of ‘survivorship’. However, as the father did not reside at the property, the tenancy was no longer secure and could, therefore, be ended by the service of a notice to quit.
The court agreed. But Ms Hickin appealed and the court concluded that she became the secure tenant as she was a person qualified to succeed via Section 89 of the Housing Act 1985 as she had resided with the tenant (her mother) for 12 months before she died.
Solihull then appealed to the Court of Appeal which concluded that on the death of the mother, the tenancy did pass to the father. Ms Hickin was, therefore, not entitled to succeed to the tenancy nor remain in the house once the notice to quit had expired.
Landlords should, therefore, fully investigate requests to succeed. Often tenancies are granted in joint names and unless these have been brought to an end, ‘survivorship’ will mean the tenancy vests in the surviving joint tenant, regardless of whether or not he/she resides in the property at the time the other joint tenant dies.
Yetunde Dania is a partner at Shoosmiths
yetunde.dania@shoosmiths.co.uk
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Readers' comments (4)
kass | 20/08/2010 8:34 am
I would agree with this judgement if surviving (absent) co-tenant had either claimed he wanted to return to the tenancy or needed housing and requested it... However if the surviving tenant has no need of housing or refuses or willingly ignores the tenancy, I find odd that Ms Hickin should be evicted from a home she might have lived in all her life.
Also I think the landlord, when awarding co-tenancies, should have a duty to provide the co-tenants full information, maybe in booklet form, about co-tenancies succession.
If there are cases where 2 or more people want to live together, why should they be penalised by finding themselves without at home for doing so. Knowing she would not be left in her home Ms Hickin and those in her family situation would be better off if they tried to get their own tenancy rather than living with friends and relatives all their lives, to be sure to have a home.
So, ultimately, this judgement really is saying do not live with your relatives/friends but spend all those years instead in trying to get your own tenancy.
The result of this is to create a bigger social housing need to supply more social tenancies rather than encourgaing people in all forms of relationship to live together in the same property as they might wish to do.
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Harry Lime | 20/08/2010 9:21 am
I think you could find that succession, other than directly to a spouse may be eroded, or certainly there may be more stringent "testing" of the appropriateness of passing the property on. With the massive amount of demand for properties is it correct that a property should simply be passed onto people's children? What if the child in question is in full time employment and could afford an open market rented property? What if there's more than one child still in the property, which of those succeeeds, is it the eldest? Is that fair? I'm not purporting to know any answers, but it is an interesting subject....
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Leslie Steward | 26/08/2010 0:07 am
Please remind me, at this late hour of this evening, how Mr Hickin's Non-Secure Sole Tenancy can be "brought to an end "if he is unwilling to Surrender or Relinquish it and his PRs, do not surrender it when afer he dies.
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Anonymous | 25/09/2010 2:19 pm
my story is similar, I was sole tenant with 2 children for 5 yrs, I then got married but his name was not put on the tenancy. Then council had to move us all as it was a mixed race marriage and we were threatened with physical harm, abusive letters and children bullied. 20 yrs later we divorced and i want my daughter to be a joint tenant with me but the council say succession can only happen once if my husbands name is taken off tenancy so they disallowed my daughters application. I keep trying to tell them that I was sole tenant and then got married so thats one succession and to take Ex's name off would make 2 successions. They also say they don't allow sole tenant to joint but they did that originally, I'm banging my head against a brick wall. I'm trying to look at the council act 87 and 88 online but the pages have mysteriously been moved. I am worried that if something happens to me my daughter will be made homless. She could find her own place but says she wants to look after me because I have become unwell recently, either that or more cost getting help from outside, please advise.
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