Succession Policy
1. Introduction
1.1 Succession is the right of an individual to take over the tenancy of a deceased tenant. The individual will normally be a spouse, partner or family member and will only have the right to succeed if certain criteria is met.
1.2 The aim of this policy is to provide clear guidance on the different types of succession that can be granted to tenants and their family members and to provide a framework and criteria for when ‘Discretionary Tenancies’ will be considered.
1.3 We recognise that the death of a family member can be traumatic, so when considering succession requests mhs will always act sensitively to establish whether there is a statutory or contractual right to succeed a tenancy.
2. Who needs to know?
2.1 This policy applies to mhs customers and their families living in social or affordable rent properties owned or managed by mhs homes with the following tenancy types:
Assure
Assured Shorthold
Secure
Protected
Fixed Term (Clarion only)
2.2 This policy does not apply to the following tenancies:
Shared Ownership
Market Rent
Intermediate rents
Lord Kitchener
Licences
Garages
2.3 The policy will be applied by our Neighbourhood Services Officers when assessing applications to succeed a tenancy.
3. Policy Statement
3.1 We recognise the importance of a family home and understand family members would like to remain in the home following the tenant’s death.
3.2 When considering an application for succession mhs will follow housing law and succession will only occur where there is a legal or contractual basis for doing so.
3.3 When considering an application to succeed we will always:
respond sensitively at a time of grief and loss.
minimise periods of uncertainty for remaining household members.
meet our statutory and contractual obligations.
make the best and most efficient use of our available housing.
4. Purpose
4.1 The policy sets out how we administrate applications to succeed a tenancy .It explains:
Our legal responsibilities.
The different types of succession, and who is eligible to succeed.
Succession by survivorship for joint tenants.
How we deal with succession claims.
When we may consider a discretionary succession.
Multiple succession claims.
Under occupation.
Adapted/special accommodation.
Right to appeal.
4.2 We will refer and apply this policy when assessing applications to succeed a tenancy.
5. Scope
5.1 This policy applies to all Social Rent and Affordable Rent tenants. It does not cover Intermediate or Market Rent customers, Lord Kitchener properties, licensees, shared owners, leaseholders, or freeholders. Market rent customers do not have automatic right to succeed however we may agree to grant a new tenancy to a family member or occupant.
5.2 This policy does not cover the assignment of a joint tenancy to a sole tenancy or assignment of a sole tenancy to a joint tenancy to add someone to a tenancy; these are detailed in our Assignment Policy and Tenancy Management Policy respectively
5.3 If a customer dies without a successor we will follow our Ending a Tenancy Policy.
6. Legal and Regulatory Overview
Key legislative and regulatory requirements affecting this policy:
Housing Act 1985 and 1988 (as amended)
Localism Act 2011
Matrimonial Causes Act 1973
Civil Partnership Act 2005*
Marriage (Same Sex Couples) Act 2013*
Family Law Act 1996
Equality Act 2010
Regulator of Social Housing’s Regulatory Standards
The Civil Partnership Act 2004 and the Marriage (Same sex couples) Act 2013, provide that same-sex couples who form a civil partnership or marriage have the same rights as those who are in a heterosexual marriage.
7. Terms and Definitions
7.1. Succession: the transfer of a tenancy following the death of a tenant.
7.2. Successor: The person who becomes the tenant through succession.
7.3. Statutory succession is a right outlined in legislation. It gives certain people (statutory successors) the legal right to inherit a tenancy on the death of a tenant.
7.4 Contractual succession is where the tenancy agreement provides qualifying family members succession rights.
7.5 Discretionary rights: Where we use our discretion to offer a new tenancy where there are no succession rights.
7.6 Survivorship: when the remaining joint tenant becomes a sole tenant on the death of a joint tenant.
7.7 Cohabitee: When a couple is living together as if married or civil partners.
7.8 Family Member is defined by the Housing Act 1985 (Section 113) as: a spouse or civil partner, a parent, grand-parent, child, grand-child, brother, sister, uncle, aunt, nephew or niece. This includes family relationships through marriage or civil partnership, relationships by half-blood, and stepchildren.
7.9 Tenant – the person who held the tenancy (mhs often refer to this person as customer, but legislation pertaining to succession uses the term ‘tenant’).
8. Types of Succession
8.1 Most of our tenants have assured tenancies, but there are a number of secure tenancies and protected tenancies.
8.2 It’s important to know the tenancy type and date when considering succession rights .It is important to refer to Section 8.5 below and Appendix 1,as they define whether there is a statutory or contractual right to succeed, or if no right exists.
9. Survivorship
9.1 Under the Housing Acts 1985 and 1988 when a joint tenant dies the surviving tenant becomes the sole tenant, regardless as to whether they were living at the property at the time of the other joint tenant’s death. This is called ‘Survivorship’ and does not require our authorisation.
9.2 If the surviving tenant is not occupying the property as their only or principal home we will take steps to end the tenancy, which will have lost any security of tenure.
9.3 The only evidence we require to record the succession is a death certificate.
9.4 Through survivorship the tenancy continues in the name of the successor, who becomes the sole tenant. As joint tenants are jointly and severally liable for tenancy obligations, the surviving tenant remains liable for any arrears or credit accrued before the death of the other joint tenant.
9.5 Survivorship counts as a succession and there are no further rights of succession unless the tenancy agreement allows it.
10. Statutory Succession
10.1 Statutory succession is an ‘operation of law’ and not ‘granted’ by a landlord.
10.2 Legislation generally provides for one statutory succession including survivorship, therefore, unless the tenancy agreement allows for it, there can be no further successions.
10.3 The statutory successor succeeds to the existing tenancy and property even if this means they are under occupying
10.4 Rent arrears accrued by the deceased are not owed by the successor and are passed to the deceased estate. However, if a possession order is in place at the time of the tenant’s death the successor must comply with the order.
11. Contractual Succession
11.1 Contractual Succession are ‘non-statutory’ rights granted to qualifying family members through the tenancy agreement, which is a form of contract, rather than by statute.
11.2 The family member must comply with the requirements set out in the tenancy agreement, which usually require the making of a formal request to succeed in writing within three months of the tenant’s death. They must provide:
Proof of death,
Evidence of their relationship with the deceased
Proof they resided at the property as their principal home for 12 months prior to the tenant’s death
11.3 We will determine whether the applicant has a contractual succession right and their housing need.Where the right exists, we will grant a new tenancy, either of the property, or we may offer to grant a tenancy of an alternative property more suited to their housing needs (Section 10 below).
11.4 Whether the grant of a new tenancy under a contractual provision counts as a succession in the law, will depend on when the original tenancy was granted. If the original tenancy was granted before 1st April 2012, succession under a contractual provision will be considered as a grant of a new tenancy and the new tenant will not be a statutory successor meaning that they retain future statutory succession rights on their death.
11.5 Rent arrears accrued by the deceased are not owed by the successor and are passed to the deceased estate. However, if a possession order is in place at the time of the tenant’s death the successor must comply with the order
12. Discretionary Succession
12.1 Where no statutory or contractual succession rights exist, we may consider offering a discretionary tenancy.
12.2 In considering whether to offer a discretionary tenancy we will look to ensure our allocation policies are not undermined by allocating a tenancy to someone who does not have as high a level of housing need as someone on the housing register.
12.3 mhs is under no obligation to offer a discretionary tenancy and will only consider doing so in the following situations:
If a partner or spouse cannot succeed to the tenancy because there’s been a previous succession to a former spouse.
Where a household member has a disability, and the property has been adapted especially for them.
Where children or people with a prescribed medical condition/vulnerability are at risk of homelessness and ending up in temporary accommodation[1].
Has given up a social housing property to care for the deceased.
Has accepted responsibility for the deceased tenant’s dependants and needs to live with them in order to do so[2]
12.4 To be eligible for consideration for a discretionary succession under the points above the applicant must:
Apply for succession within three months of the tenant passing and provide evidence to support their request.
Be a family member who lived with the tenant in the property as their principal home for 12 months prior to the death.N.B applicants accepting responsibility for the dependant’s children do not need to have lived in the property beforehand, but the dependants must have lived there for 12-months.
Be entitled to an allocation of social housing and can afford the rent.
Agree to clear any rent arrears accrued since the tenant’s death and remedy any breach under the tenancy.
When considering whether to offer a discretionary tenancy we will assess the application and supporting evidence to:
Ensure the applicant meets one of the five points listed in section 8.7.3
Confirm the applicant is a family member and has lived at the property as their principal home for the last 12 months.
Assess the applicant’s eligibility for social housing, has a legal right to hold a tenancy and has recourse to public funds.
Ensure the applicant doesn’t have a legal interest in another property.
Consider whether the property meets their housing need, or if alternative property should be offered.
Assess any ASB, condition of property or tenancy management considerations.
Consider the application against the wider housing need.
12.5 Any resulting offer will be to a new starter tenancy, either to the existing property (if it meets the applicants housing needs) or an alternative property)
12.6 Where the applicant does not meet the terms for succession we will follow our failed succession process
[1] As agreed with Medway Council Housing Options Manager 2024
[2] Must evidence they don’t have any other housing options and are eligible for social housing.
13. Considering claims for Succession
13.1 Only one person can succeed a tenancy, they must be a qualifying family member. If there is no spouse, civil partner or cohabitee and the other family members can’t decide who will succeed they should take the matter to court for a for a formal judgement. We will then act upon the courts findings.
13.2 Claims for contractual or discretionary succession must be made within three months of the tenant’s death. It is the applicant’s responsibility to provide the evidence to support their application.
13.3 We will consider claims for succession as sensitively and quickly as possible. Our assessment may include home visits to check who is living at the property, we may also request further supporting documents such as bank statements, proof of benefits and birth certificates.
13.4 We will keep you informed throughout the process and will write to you with our decision. If you are not eligible to succeed or your request for a discretionary tenancy is declined, we will discuss your housing options with you.
13.5 If we suspect tenancy fraud we will investigate in line with our Tenancy Fraud Policy.
14. Succession Approved
14.1 If you succeed to the tenancy through Survivorship, we record that the tenancy has transferred from joint to sole. You may not be asked to move as a consequence of the death even if you are underoccupied and any rent arrears or credits associated with the deceased tenant will remain on your account and any outstanding notices are still enforceable.
14.2 If you succeed to the tenancy through Statutory Succession we will record that the tenancy has transferred to your name. Any rent arrears or credits associated with the deceased tenant will be passed to the deceased tenant’s estate, however any outstanding enforcement notices remain. However if mhs homes require the property due to under occupation or because it has been adapted, we reserve the right to use appropriate grounds to take back the property and will support tenant to find another home.
14.3 If you succeed to the tenancy through Contractual or discretionary Succession we will consider if the property is suitable for your needs as defined in section 10.
14.4 If the property is suitable, we will grant a new tenancy, which may be a starter tenancy. If the original tenancy commenced prior to 1st April 2012 a customer will regain new succession rights to pass on to eligible family members. Any original tenancy that commenced after this date would not have this right. Any rent arrears or credits associated with the deceased tenant will be passed to the deceased tenant’s estate, however any outstanding notices may still be enforceable.
14.5 If you would be under occupying or the property isn’t suitable for your needs, we will work with you to find a suitable property that meets your housing need and will recognise you are grieving. However, we will balance this with the need to make the best use of our housing stock.
14.6 We will look to end the deceased tenancy and allow you to remain in the property whilst we find you alternative property. You will be liable to pay us damages which will be the equivalent of the weekly rent for the property whilst you occupy the property. We call this ‘Use and Occupation’ whilst you remain in the property.
14.7 You will be offered one suitable property, if you decline without good reason we will look to end your licence to occupy and recover the property through the courts.
15. Failed Succession
15.1 If there’s already been a succession to the tenancy or the applicant isn’t eligible to succeed, we will look to regain possession of the property.
15.2 Upon declining the succession, we will serve the executors or personal representatives of the estate of the deceased with a Notice to Quit terminating the contractual tenancy that remains. A copy of this notice will be sent to the Public Trustee if the tenant died without leaving a will and/or no Letters of Administration have been taken out by personal representatives. Alternatively, if the tenancy has been bequeathed to the occupier under a will, we serve a notice under Ground 7 (Death of an Assured tenant).If you remain at the property after any notice has expired, you will be liable to pay us damages which will be the equivalent of the weekly rent for the property whilst you occupy the property .This is owed until you vacate or we get procession of the property through the courts.
15.3 We will discuss housing options with you and offer support to apply to the housing register and signpost to market rent options.
16. Property Suitability
16.1 When considering a claim for contractual or discretionary succession we will consider the suitability of the property, specifically occupancy levels, adaptations, and the wider housing need.
16.2 We define under occupation as having at least one more bedroom than required by the occupants who lived there at the time of the tenant’s death. Occupants who moved in after the customers death are not considered. Bedroom standards are defined within our Lettings Policy.
16.3 Where entitled to do so (contractual and discretionary successions), we may refuse a claim for succession if this will result in the property being under occupied.
16.4 We are not entitled to refuse survivorship, or statutory claims for succession even if this results in the property being under occupied. However, we will discuss alternative housing options with the tenant in order to make best use of our housing stock, and may consider possession proceedings where there are grounds for us to do to so.
16.5 We will look to make best use of properties that have been adapted. Where adaptations are not required by the successors we will consider offering an alternative in order to free up an adaptable property and may consider possession proceedings where there are grounds for us to do to so.
16.6 Properties that have been developed for specific client groups, for example bungalows which are restricted to customers aged over 55 or with medical needs and whilst the tenancy may succeed it may be that the property doesn’t.
17. Inheriting a tenancy
17.1 Where there is no statutory or survivorship right to succession, the tenancy can pass under a will of intestacy .If the inheritor occupies as their only or principal home and the original tenancy granted was assured, the tenancy will be assured.
17.2 Where a tenancy passes through a will we will consider if the beneficiary have a right to social housing. If not we will look to end any secure tenancy by using a Notice to Quit, and any assured tenancy by using mandatory Ground 7 for possession as set out in schedule 2 of the Housing Act 1988.
18. Training
18.1 Application for successions is administrated by our housing team who are trained on this policy and supporting procedure.
18.2 In addition to training on the policy our staff are also trained to be emphatic when dealing with customers during their time of grief.
18.3 Approval for discretionary and contractual successions sit with the housing manager and head of housing, who are trained to consider the legal parameters when making a decision.
18.4 Appeals are heard by senior managers and assistant directors, who are trained to chair appeal hearings, consider supporting evidence and assess the legal obligations.
19. Assurance & Monitoring
19.1 Approved and declined Succession applications are logged on our housing management system and the application form and supporting evidence is saved to our Electronic Data Management system.
19.2 Head of Housing will assess 10% of all applications annually to ensure compliance with legislation and this policy. Discretionary decisions will be reviewed to ensure decisions are made equitably, fairly and no individual or group are being excluded.
19.3 Supporting the policy is an Equality Impact Assessment.
20. Equality Statement
This policy applies to all Assured, Secure, Protected and Fixed Term tenancies issued for home owned or managed by mhs homes. mhs homes wants to make sure that no person receives less favourable treatment from the organisation on the grounds of age, disability, gender reassignment, marriage, civil partnership, pregnancy, religion or belief, race, sex, or sexual orientation.
This policy will be reviewed in three years’ time or earlier if required by legislation, new significant guidance or in response to specific incidents.
Approval details
| Date approved | 25/05/2025 |
| Implementation date | 01/04/2021 |
| Review date | 25/05/2028 |
| Approved by | Assistant Director |