appendix
the existing succession rules

                  A.1               The present law on the right to succeed to a residential tenancy is contained in the following legislative provisions. We include here consideration of the Housing (Scotland) Act 2001 as useful modern model, even though it does not apply to England and Wales.

                  A.2               On the death of a regulated tenant the provisions of schedule 1 (as amended) of the Rent Act 1977 determine who may succeed to the tenancy. They also determine the nature of the tenancy to which the successor may succeed. Succession is not possible if the tenancy has been determined, either by the tenant giving up possession, or because a final order for possession has been made against the tenant.

                  A.3               There is a complex range of possibilities which can occur.

                                            (1)             If there has been no previous succession, and the succession is to a spouse, the spouse succeeds to a (Rent Act) statutory tenancy.[1]

                                            (2)             If there has already been a previous succession and the second succession is to a spouse, the spouse succeeds to a (Housing Act 1988) assured tenancy.[2]

                                            (3)             Where there is a succession to a person other than a spouse (that is, a member of the deceased’s family), the succession is to an assured tenancy.[3]

                  A.4               The importance of the distinction between succession to a Rent Act protected tenancy and a Housing Act assured tenancy is that more (mandatory) grounds for possession are available in the case of the latter than the former.

                  A.5               For these purposes “spouse” is statutorily defined to include not only a husband or wife but also a person living with the original tenant as husband or wife.[4] A spouse does not have to have been residing with the deceased tenant prior to the death of the tenant.

                  A.6               A “member of the deceased’s family” has to have been residing with the deceased tenant at the time of the death and for at least two years prior to the death.[5] This test raises a number of subsidiary questions.

                                            (1)             Who is to be regarded as a member of the family?

                                            (2)             What is the nature of the residence that establishes the qualification?

Member of the family

                  A.7               Where there is a legal or blood relationship, there is usually little difficulty in determining whether a person is a member of the family. (There may be more difficulty determining residence.) Case law has decided that the phrase embraces: mothers and fathers, brothers and sisters, nephews and nieces, mothers- fathers- brothers and sisters-in-law, grandchildren (including adopted grandchildren), adopted children, step children, and illegitimate children.[6] Case law has gone beyond legal or blood relationships to include a number of people who would be regarded by the ordinary person as a member of the deceased person’s family. However judicial views on the scope of this test have varied.[7] And while the courts have held that the phrase should be treated not as a technical legal term but in a popular sense, the courts have been the ultimate arbiter of the scope of the phrase.[8] Lodgers have not been included as a member of the family.[9]

Residence

                  A.8               Additionally the test of residence has to be satisfied. This has been held to be a question of fact.[10] Residence does not imply immediate presence; thus the fact that a successor was in hospital at the time of the tenant’s death did not prevent “residence with” the tenant.[11] But there must be something that can be described as residence, rather than merely casual visits.

                  A.9               As a result of amendments in the Housing Act 1988, the period of residence is now 2 years; under the unamended Rent Act 1977, the qualifying period was 6 months.

              A.10               Given the breadth of definition of those who might be entitled to succeed, and the fact that the legislation prescribes no order of priority (other than a spouse who always takes precedence), those who might be entitled have to agree amongst themselves who should succeed. Any dispute may be resolved by application to the county court.

              A.11               On the death of a secure tenant with a periodic tenancy, there is a single right of succession.[12] The person qualified to succeed is either the spouse of the deceased if he occupied the dwelling as his only or principal home at the time of the death; or is another member of the tenant’s family who has resided with the tenant for a year before the tenant’s death. [13]

              A.12               Where the secure tenant occupied under a fixed term tenancy, this can be left by will or on intestacy. If the person to whom the tenancy is thereby devolved also qualifies as a successor, he takes as a secure tenant. Otherwise the successor tenant is a mere contractual tenant.[14]

Member of the family

              A.13               Unlike the position under the Rent Act 1977, “member of the family” is defined by statute.[15]

Successor

              A.14               In addition to succession under the above provisions, “successor” also includes the following.[16]

                                            (1)             A joint tenant who becomes the sole tenant following the death of the other joint tenant.

                                            (2)             A tenant who occupies under a periodic tenancy which arose at the end of a fixed-term tenancy.

                                            (3)             A tenant to whom the tenancy has been assigned, under the provisions enabling assignment to a potential successor.

                                            (4)             A tenant who has had the tenancy vested in him on the death of the previous tenant.

                                            (5)             A tenant to whom the tenancy was assigned under section 24 of the Matrimonial Causes Act 1973, if the other party to the marriage was also a successor.

                                            (6)             A tenant to whom the tenancy was assigned under the right to mutual exchange in section 92 of the Housing Act 1985, if the tenant had been a successor in the tenancy which they assigned in exchange.

                                            (7)             A tenant who was a successor in relation to one tenancy may remain so in relation to a subsequent tenancy. This will happen, unless the new tenancy agreement otherwise provides, where within 6 months of the determination of the previous tenancy, the tenant is granted a new tenancy, either of the same dwelling or a different one from the same landlord.

              A.15               The effect of a tenant being a “successor” under these provisions is that the “successor’s” tenancy cannot be the subject of a further succession. If the successor obtains a new tenancy in which they do not count as a successor under these rules, then that new tenancy will be able to be passed on in turn to their successors. This can create problems where landlords wish to operate succession policies which are more generous than the statute.[17] The person who obtains a tenancy under such a policy will not count as a successor for the purposes of the Act. That person will therefore be able to pass on their tenancy under the right of succession, whereas a person who has already succeeded under the Act could not do so. This is seen as an unnecessary disincentive to operating succession policies which are cast more widely than the statutory scheme.[18]

Determining priority

              A.16               Where more than one person has the right to succeed, the tenant’s spouse is to be preferred to any other member of the family.

              A.17               If there is no spouse and there are two or more members, priority is given to whichever member of the family is agreed to have priority. Failing agreement, the decision is to be made by the landlord.[19]

The Housing Act 1988

              A.18               Under the assured tenancy scheme, where the assured tenancy was a periodic tenancy and the tenancy was a joint tenancy, the right of survivorship applies and the surviving joint tenant becomes the assured tenant. This is deemed to be a succession for the purposes of the right of succession.[20]

              A.19               Where the tenant was a sole tenant, there may be one succession to a spouse[21] who must be in occupation of the dwelling at the time of the death as his only or principal home.

              A.20               There is no right of succession to any other member of the family.

              A.21               Where the assured tenancy was for a fixed term, such tenancy may devolve by will or on intestacy. But the person to whom the tenancy is thereby devolved is deemed to be a successor, and thus precluding any further right of succession.[22]

              A.22               Under sections 17(2) and (3) there are rules on when a tenant is deemed to have used up the right of succession, which differ slightly from those in the Housing Act 1985 listed above. They include not only where the tenant obtained the tenancy by statutory succession, but also where that person has succeeded under a will, by intestacy, or joint survivorship.

              A.23               The rules do not contain any provision whereby the tenant retains successor status where the tenant moves to another property, whether by taking an assignment of a tenancy of that property or by taking a fresh tenancy of that property. But, under section 17(3), if the tenant is a successor, they remain so if they stay as a tenant in the same (or substantially the same) property continuously, even though they do so under a series of new tenancies and even if with a series of new joint tenants or a series of new landlords.

              A.24               This is the latest Act to set out rules for succession to tenancies. Under its provisions two rights of succession are permitted.[23] Succession is to a “qualified person”. If there is no qualified person, the tenancy terminates.[24] The tenancy also terminates on the death of the second successor.[25] However, this rule does not apply to a tenant under a joint tenancy where such a joint tenant continues to use the house as that person's only or principal home.[26] Further, where a tenancy terminates on the death of the second successor, and there is a qualified person (other than a joint tenant) who would otherwise be entitled to succeed, that person is entitled to continue as tenant for a period not exceeding six months, but the tenancy ceases to be a Scottish secure tenancy.[27]

              A.25               The striking thing about this right to two successions is that it appears that a second successor, who cannot otherwise pass on their tenancy, can nevertheless obtain the right to pass it on twice more simply by obtaining a new tenancy.[28] There is no equivalent in the Act to the provisions of section 88 of the Housing Act 1985 or sections 17(2) and (3) of the Housing Act 1988. The only exception is found in section 22(10) which provides that, where the tenant moves to suitable alternative accommodation under a court order made under what we have described as the estate management grounds,[29] the new tenancy is deemed to be the same as the old one for succession purposes. By implication therefore any voluntary move to a new tenancy, even with the same landlord, will revive the right to pass on the new tenancy twice even if the tenant had been a second successor in the old tenancy.

Qualified persons

              A.26               Qualified persons are defined in Schedule 3, paragraph 2 of the 2001 Act as:

                                                                                           (ii)             living with the tenant as husband and wife or in a relationship which has the characteristics of the relationship between husband and wife except that the persons are of the same sex,[30] or

                                                                   (b)              who is, where the tenancy was held jointly by two or more individuals, a surviving tenant;

                                            (2)             a member of the tenant's family aged at least 16 years where the house was the person's only or principal home at the time of the tenant's death; or

                                            (3)             a carer providing, or who has provided, care for the tenant or a member of the tenant's family where

                                                                   (c)              the carer is aged at least 16 years,

                                                                   (d)              the house was the carer's only or principal home at the time of the tenant's death, and

                                                                   (e)              the carer had a previous only or principal home which was given up.

              A.27               Special rules relate to the right to succeed to a specially adapted house; in essence the successor can only succeed to the same house if he or she requires accommodation of the kind provided by the house. If that is not the case, the landlord must provide suitable alternative accommodation.[31]

 Order of priority

              A.28               The tenancy passes to a person within paragraph (1) above unless that person declines the tenancy. If the tenancy does not pass to a person in paragraph (1), it passes to a person in paragraph (2) unless the person declines the tenancy. If that happens the tenancy then passes to a person in paragraph (3). If there is more than one person in any class, they must either agree which is to take the tenancy or, failing that, a choice will be made by the landlord.[32]