Death of a tenant

What happens when someone dies?

This article has been written to try to explain how the law works when a tenant dies. Many people live with their parents or with a partner and they may have worries about their own future, if anything happens to the person holding the tenancy.

We know what a difficult time it is when a loved one dies, and we hope that the information here will begin to clarify legal issues around succession of tenancy. After reading this, some of you will have the comfort of knowing that your home will be secure following the death of a parent or partner. For those of you who do not, this article will may give you more time to prepare for the future.

To many people the law can be confusing. These are the broad generalities:

• No tenancy of any sort at all can be passed on if the tenant who has died is in breach of any court order that has been obtained because of rent arrears. This is because only a “secure” tenancy can be passed on.
• Where a tenancy is in two names (joint tenancy), the other person who is the named tenant will automatically become the only tenant.
• Where a tenancy is in one name but the tenant is married, the tenancy will pass to the married partner. This will happen as long as the tenant who has died was the original tenant and did not themselves inherit it. The married partner of the deceased tenant can stay in the property no matter what size it is.
• Each tenancy that is in a single person's name can be passed on just once. It can only be passed on to a close family member who has been living with the tenant for a full twelve months prior to the tenant’s death. The person who has been living as the partner of the tenant takes priority over everyone else and if there is no partner their children are next in line. This applies to gay and lesbian couples as well as heterosexual partners. If the property is too big for the next family member who succeeds to it, the TMO can serve a notice that they mean to take possession of it, but in order to do this they have to offer the new tenant another property which is the right size for themselves and any family who live with them. If they are already in the right size property, they can usually stay where they are. The council's allocations policy at present permits the TMO to make one offer of suitable sized accommodation to family members who meet the criteria for succession in every way but cannot succeed because of a preceding succession. In these cases it is best to ask your housing officer for more information.

In all cases, it is best to ask the advice of your housing officer. We are be happy to offer general advice on a confidential basis, or about a specific tenancy with the consent of the person concerned.

Some frequently asked questions:-

My mother died leaving a lot of rent arrears. I know that I can stay here after she has died, but do I have to pay off the debt?

No, you will not have to pay off her debt, but you will be liable to pay the rent from the date that she died.

I have been living with my father for over three years, but I have no proof of this because all my documents show the address where I used to live with my wife. What can I do to show you that I have lived here?

When someone dies the housing officer will ask you to bring in proof that you have lived at the address and that you do not have accommodation anywhere else. Anything that you gives us will be treated in confidence, but we also make other checks such as electoral register, housing benefits, and possibly your employer. Obviously, the more information that you give us, the easier it will be to make a favourable decision.

I have lived with my partner for eight years and he is terminally ill. Before that, his mother was the tenant and he took it over from her. Will I have to leave if my husband dies?

Unfortunately, yes. The law does not allow us to give you the tenancy of your home.

I am a gay man and I have been living with my partner for five years. We are not openly “gay” as far as neighbours are concerned and they think I live here as my partner’s carer. We have a joint bank account and we do have photographs of ourselves together when we had a gay marriage ceremony two years ago. Is this enough?

Yes, we would be satisfied with that evidence and information that you give us will be treated in strictest confidence.

My father was the tenant of this property and he died five years ago. We did not inform you of this and recently my mother also died. Can I take over the tenancy?

Unfortunately, whether or not we knew about the death of your father, your mother automatically became the tenant when your father died, because this was her right in law, so you cannot succeed to his tenancy.

Further information

For further information, please contact your Housing Officer, on freephone 0800 137 111.