Where a property is rented under an assured shorthold tenancy to a sole tenant and that tenant dies, the death of the tenant does not automatically bring the tenancy to an end. Sometimes there will be a successor to the tenancy.
On the death of a sole assured shorthold tenant his or her spouse or civil partner can succeed provided that immediately before the death they were occupying the property as their only or principal home. Civil partners and same sex couples also enjoy the right to succession of a tenancy where applicable.
The definition of spouse in this context includes persons who have been living together as husband and wife or as civil partners. There can be no statutory succession if the deceased was already a successor to the tenancy. If the tenancy was a joint tenancy and the deceased became the sole tenant on the death of the other original tenant, there can be no statutory succession as per s.17(2) of the Housing Act 1988.
Ground 7 of Schedule 2 to the 1988 Housing Act gives the landlord a mandatory Ground for possession where a tenancy has devolved under the will of a tenant or on the late tenant’s intestacy. Proceedings must be commenced no later than one year after the death of the tenant. Ground 7 provides that acceptance of rent after the death of the former tenant will not be regarded as the creation of a new tenancy, unless the landlord agrees new terms with the succeeding tenant.
Where the tenancy is a statutory shorthold tenancy, a landlord can commence possession proceedings as normal by serving notice under s.21 of the Housing Act 1988. In that respect, succession to a shorthold tenancy does not dramatically impact landlords.
If a tenant dies and the tenancy is a joint tenancy the remaining joint tenant or tenants have an automatic right to stay on in the property. Where there is more than one spouse/civil partner/cohabitee entitled to succeed, they must either agree as to who will succeed to the tenancy, otherwise the county court will decide.
Succession and Rent Arrears
Fundamentally, a successor is not liable for any rent arrears that may be owed by the original tenant at the time of her/his death. However, if there is a possession order in force at the time of the death of the original tenant, the successor will be at risk of eviction unless they comply with the possession order or successfully set the order aside.
This means a landlord cannot claim rent arrears owed by the original tenant from a successor or evict the successor on the grounds that rent has not been paid by the original tenant.
Can the tenancy be terminated by agreement?
Where the tenant has left a will, the landlord will liaise with the executor named in the will. Where there is not a will the landlord will need to liaise with the court appointed administrator who could be the tenant’s family member or, in the absence of family, the Public Trustee, a specialist Court officer.
Once the executor or administrator is known the landlord or agent should seek a surrender of the tenancy to bring the tenancy to an end in which the landlord can avoid taking legal action to recover possession of the property. A surrender of tenancy should be done by deed in which the execution of the deed must be witnessed. At the same time, any deduction the landlord wishes to make to the tenancy deposit (if applicable) that may have been paid in connection with the tenancy can be negotiated at the same time.
The above clarifies that a landlord should refrain from immediately taking possession of their property following the death of their tenant as the tenancy does not automatically come to an end.
Date; 8th of March 2019
Source; Landlord Advice UK – Leading tenant Eviction Specialists
Author; Mr Sasha Charles