Despite this initially seeming a niche subject to consider, it is important for landlords and the late tenant's surviving family or executors to be aware of the issues that arise when a tenant, under a sole tenancy, passes away. It is a popular misconception that upon the death of a sole tenant, their tenancy will automatically end. If the tenant had an assured shorthold tenancy (“AST”) whilst they were alive, the status of the tenancy may change upon their death. This is because, for a tenancy to be an AST, the following must be satisfied:-
- The tenant must be an individual (so, not a company);
- The property must be occupied by the tenant as their only or principle home;
- The tenancy must not be a tenancy that cannot be an assured tenancy (for instance, local authority tenancies or the rent is too high or too low in value).
The key point, in this case, is point 2. If the tenant has died, the tenancy may not continue to be viewed as an AST if the property is unoccupied or is occupied by someone who has not succeeded or inherited the tenancy. Therefore, service of the usual section 21 or section 8 notices to recover possession may not always be appropriate.
So, what do you do when a tenant dies?
What happens if the tenancy was a joint tenancy?
Where the AST was held by joint tenants and one tenant dies but the other tenant remains in occupation, the survivor will become the sole tenant. If the landlord wishes to recover possession from the remaining joint tenant, they will need to serve a section 21 notice if the fixed term of the AST has expired, or serve a section 8 notice if the tenancy is within the fixed term and one of the grounds for possession is established. If the property remains occupied upon the expiry of a valid section 8 or section 21 notice, the landlord will need to issue possession proceedings. Our residential possession team can assist with this process.
What happens if a non-tenant spouse is still occupying the property?
If immediately before the death of a tenant, the deceased tenant's spouse, civil partner or anyone who lived with the deceased tenant as their spouse or civil partner, was occupying the property as their only home, the AST will pass by statutory succession to that person. If the landlord wishes to recover possession from the statutory successor, they shall need to serve a section 21 notice if the fixed term of the AST has expired, or serve a section 8 notice if the tenancy is within the fixed term and one of the grounds for possession is established. If the property remains occupied upon the expiry of a valid section 8 or section 21 notice, the landlord will need to issue possession proceedings. Our residential possession team can assist with this process.
What happens if the tenancy is inherited?
If there is no one that qualifies as a statutory successor, then the AST can be inherited under the deceased tenant's Will – this is not very common though. What is more common (as detailed below) is a tenant dying without a Will and the tenancy passing to the Public Trustee.
Advice should be sought as soon as a landlord becomes aware of the death of a tenant. Not only to protect loss to the estate, but to ensure they can rely on mandatory grounds for possession by virtue of the tenant's death, if they need to. If the landlord wishes to rely on this ground (ground 7) to obtain possession from the person who inherited the AST, the landlord must commence proceedings within 12 months of the date of the death of the tenant or if the court directs, 12 months from the date the landlord became aware of the death. The landlord may also have to serve additional notices so again, advice should be sought and our residential possession team can assist with this process.
If there is no joint tenancy, succession or inheritance, what now?
Has the tenant left a Will?
If the tenant has left a valid Will, the tenancy will pass to the tenant's estate. Therefore, the executors to the estate would be who any notices are issued to and who is responsible for surrendering a tenancy (if they are prepared to). If the executors do not want to surrender the tenancy, advice should again be sought regarding serving notices (which may not be the usual section 8 or section 21 notices). Our residential possession team can assist with this process.
What happens if the tenant did not leave a Will?
If the tenant died intestate, the tenancy will not pass to the family, or any occupier and will instead pass to the Public Trustee. This is until such time as letters of administration are taken out (which is similar to a grant of probate). The Public Trustee will hold the tenancy subject to a trust in favour of the next of kin who is beneficially entitled to the deceased's estate. If the landlord wishes to recover possession of the property, they shall need to serve notices (which again, may not be a section 8 or section 21 notice) on the persons likely to be next of kin and also the Public Trustee. If this is not done, any claim for possession will likely fail. Again, our residential possession team can assist with this process.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
