Can you inherit a housing association tenancy?

Can you inherit a housing association tenancy?

You may have the right to inherit a housing association tenancy if you are living there when the tenant dies. Find out about succession rights for partners and relatives of housing association tenants.

Succession rights when a housing association tenant dies

Succession rights when a housing association tenant dies

The right for someone to inherit a tenancy when the tenant dies is known as succession.

A housing association tenancy can usually only be inherited once, unless the tenancy agreement allows for more than one succession. Check with the landlord.

Your right to inherit or succeed to a housing association tenancy depends on the type of tenancy and your relationship with the person who died. Most housing association tenants have an assured tenancy.

Before you can inherit a tenancy, the housing association may ask you to provide evidence of:

who you are

your relationship with the tenant

how long you had been living with them

The tenancy you inherit will be the same type of tenancy as that of the tenant who died. You will pay the same rent and have the same rights as they did.

Joint housing association tenants

Joint housing association tenants

You automatically become the sole tenant if you have a joint housing association tenancy and the other joint tenant dies.

Your right to succeed takes priority over anyone else's claim to inherit the tenancy.

This applies whatever type of housing association tenancy you have.

Succession rights of married and unmarried partners

You can inherit an assured tenancy if the tenant who died was your husband, wife, civil partner or cohabitee, as long as it was your home when they died.

Some housing association tenants have an assured shorthold tenancy. The rules about who can inherit the tenancy vary depending on the type and length of the tenancy.

Periodic tenancy

A periodic assured shorthold tenancy is one where a fixed-term tenancy has expired and not been renewed or the tenancy agreement was never for a fixed period.

You can inherit the tenancy if you were the husband, wife, civil partner or cohabitee of the person who died, as long as it was your home at the time they died.

Other relatives can only inherit the tenancy if the tenancy agreement allows this.

Fixed-term tenancy for less than two years

You have no right to inherit a housing association tenancy if it is an assured shorthold tenancy with a fixed term of less than two years.

Even if the person who died left you their tenancy in their will, the housing association can get a court order to evict you. You can stay in your home until they do.

If the housing association agrees, you can pay use and occupation charges until you leave. You can apply for housing benefit to help with the cost.

Fixed-term tenancy of two years or more

Sometimes a fixed-term tenancy is granted for a period of two years or more. You can inherit this type of tenancy if you were the husband, wife, civil partner or cohabitee of the tenant, as long as it was your home at the time they died.

Other relatives can only inherit the tenancy if the tenancy agreement says this can happen.

Succession rights for a pre-1989 secure tenancy

If the tenant who died had been a tenant of the housing association since before 15 January 1989, they probably had a secure tenancy.

The rules for who can inherit a secure housing association tenancy are the same as the rules for a secure council tenancy.

If you don't have the right to inherit the tenancy

The housing association can ask you to leave after the tenant's death if you don't have the right to inherit the tenancy.

It must end the tenancy properly and can then ask a court to evict you if you don't leave.

What happens to a tenancy when the tenant dies?

Find out what happens when a tenant dies if they lived in a council or housing association home.

Check if you can inherit the tenancy

You may be able to take over a council or housing association tenancy if you were living with the tenant who died.

Check if you have a right to inherit a council tenancy or inherit a housing association tenancy.

If you are a joint tenant the tenancy continues, but in your name only.

Contact the council or housing association to inform them of the tenant's death.

Find out more from Gov.uk about what to do after someone dies.

If you don't inherit the tenancy

If you have been living in the home of a council or housing association tenant who has died and no one inherits the tenancy, you have the right to stay in the property until the tenancy is ended properly.

The tenancy can be ended by the landlord or by the person looking after the affairs of the tenant who died.

Rent will still be payable but this is not your responsibility. The landlord must claim the rent from the estate of the tenant who died.

Once the tenancy has been ended properly, you have no right to remain.

If you stay, you will be a trespasser. The landlord can get a court order to evict you and to claim money from you for the time you've stayed in the property as a trespasser.

The landlord may agree to you paying use and occupation charges while you remain in the property. You can apply for housing benefit to help cover these costs.

The council should give you advice about your options and may have to provide you with somewhere to live.

By the landlord

A landlord must serve a minimum of four weeks' notice on those looking after the deceased tenant's affairs or on the Public Trustee.

By the person looking after the affairs of the person who died

If you are looking after the affairs of the tenant who died you must:

serve a minimum of four weeks' notice on the landlord, or

agree a 'surrender' of the tenancy with the landlord

An agreed surrender ends the tenancy straightaway.

The landlord might not accept a surrender if you are still living in the property.

If you want to leave, check if the tenancy can be terminated by mutual consent between the landlord and those looking after the affairs of the tenant who died.

The law gives housing association tenants certain rights. Secure tenants have more rights than introductory tenants. You are an introductory tenant for the first year of your tenancy. After 12 months you’ll become a secure tenant.

Secure tenants can only be evicted if the housing association gets a court order. It can apply for a court order if

you haven’t paid your rent

you haven’t kept the property in good condition

you, a member of your family or a visitor to your home has been involved in anti-social behaviour

you didn’t tell the truth on your housing application form.

Right to pass your home to a family member after you die

Secure tenants have a right to succession. This means that, if a secure tenant dies, the tenancy can pass to a close relative who lived with the secure tenant for a period of 12 months up until he or she died. If a joint tenant dies, the tenancy will automatically pass to the other joint tenant. If a sole tenant dies and the tenant’s spouse lived with them at the time of the death the spouse will inherit the tenancy.

If you apply for a succession you will have to provide proof of your relationship to the deceased tenant and you may also have to prove that you lived in the property with the tenant for the last 12 months.

If an introductory tenant dies, the introductory tenancy can be passed to the tenant’s spouse or partner or to a family member who has lived with the introductory tenant for the 12 months leading up to the tenant’s death.

The under-occupancy penalty (also known as the under occupation penalty, under-occupancy charge, under-occupation charge or size criteria)[1] is a reform contained in the British Welfare Reform Act 2012whereby public-housing (also called council or social housing) tenants with rooms deemed to be "spare" face a reduction in Housing Benefit, resulting in them being obliged to fund this reduction from their incomes or face rent arrears and potential eviction by their landlord (be that the local authority or a housing association). The under-occupancy penalty is more commonly referred to as the Bedroom Tax; especially by critics of the changes who argue that they amount to a tax because of the lack of social housing (or in some areas, any rented accommodation) for affected tenants to downsize to (and the refusal to accept the risk of taking lodgers in). The penalties are also criticised as having a disproportionate impact on disabled people

The under-occupancy rules apply from 1 April 2013 and applies to all those of working age . Having one bedroom more than the calculated allowance means a reduction in housing benefit of 14%, and two "spare" bedrooms means that a tenant will lose 25% of their housing benefit.[5] The rules for calculating allowed bedrooms are the same as for Local Housing Allowance for benefit claimants in private sector tenancies, except for the rules involving disability or the armed forces[citation needed].

One bedroom is allowed for each of the following:

An adult couple

Each other person aged 16 and over

Two children of the same sex under 16

Two children who are under 10 regardless of sex

Any other child (other than a foster child whose main home is elsewhere)

A non-resident carer (or group of carers) for a person in the house requiring overnight care

Where a room is required by a disabled child who is unable to share a bedroom

Exemptions[edit]

A number of types of housing are exempt from the changes. These include those living in temporary accommodation, shared ownership accommodation and non-standard accommodation such as houseboats and mobile homes.

There is a further category of exempt accommodation defined as "accommodation provided by a housing association, a registered charity or voluntary association where that body, or a person acting on its behalf, also provides the claimant with care or support" (supported housing), "or supervision" (sheltered housing).[5]

If a "spare" bedroom is created following a death then a council tenant's housing benefit will not be reduced until a year after the death.[6]

Right of Succession for Secure Tenants 2.1 The Housing Act 1985 Part 4 (Secure) makes provision for succession on the death of a tenant. The Act allows ONE succession by a spouse or “other family member”. 2.2 Section 160 of the Localism Act 2011 inserts a new Section 86A into the Housing Act 1985 which states that statutory succession to a Secure tenancy entered into after April 2012 only applies to the spouse or civil partner of the deceased tenant who was living in the property as their only of principal home at the time of the tenants death. The statutory Right of Succession of a member of the family has been removed for new tenancies. 2.2 A spouse is a person to whom the late tenant was legally married or a person who lived with the deceased as “husband or wife”. 2.3 On the death of a tenant, the tenancy will automatically pass to their “husband or wife” whether or not they are a joint tenant. 2.4 In line with our Equal Opportunities Policy, NCHA will also treat same sex couples the same as those in heterosexual relationships.

Right to Succession for Assured Tenants 3.1 The Housing Act 1988 Section 17, makes provision for succession on the death of a tenant. The Act allows ONE succession by a spouse or someone living with the tenant as his or her husband or wife. 3.2 Only the spouse or co- habitee has a right of succession. In line with our Equal Opportunities Policy, NCHA will also treat same sex couples the same as those in heterosexual relationships 3.3 Co-habitees and spouses do not have to prove length of residency. 3.4 The succession date is the date of death. No new tenancy is created and the occupier will inherit the existing assured tenancy

Right to Succession for Fixed Term tenants The Localism Act 2011, with effect from 1 April 2012, amended the succession rights of new social housing tenants to ensure a Right of Succession for a Fixed Term Tenant provided that the tenancy is for a term of not less than 2 years Only the spouse or co- habitee has a right of succession. In line with our Equal Opportunities Policy, NCHA will also treat same sex couples the same as those in heterosexual relationships

may legally ask an occupier to move to alternative accommodation even if they have the right to succeed if:-  the property has been adapted for someone with physical disabilities and the successor does not need the adaptations  the property is excessively large for their needs and the successor is not the spouse of the deceased tenant

In all cases when an Estate Officer is notified that a tenant has died and that there may be succession they should treat the spouse or family member sympathetically and explain that a copy of the death certificate is required. 7.2 Potential successors should be interviewed and asked for details to confirm their claim to succession.

There is no need for the successor to sign a new tenancy agreement.

A “Succession Note” (Appendix 1) should be completed at the interview and attached to the tenancy agreement. All HB forms should be completed and verified. 7.8 If there are rent arrears outstanding and the tenancy was a joint tenancy at the time of death, the remaining tenant will be wholly responsible for the debt outstanding. 7.9 If the successor was not a joint tenant then it is the Association’s policy to ask other successors to clear any outstanding arrears, from the deceased's estate. However, discretion may be exercised by the Regional Housing Manager/Service Manager depending on the deceased's and successor’s circumstances. Legal action cannot be taken to recover the debt. Arrears on the account at the time of death should be re