By Richard Paris, HQN associate in housing law

Danielle Aumord’s feature in the October 2025 edition of HQM is excellent journalism but maybe gets a bit confused about how succession works in law and how different social landlords treat succession in their tenancies and/or their policies.

Quite simply, the law is an ass or maybe it’s just confusing and its application can be cruel sometimes!

For all of the statute cited below, there is also a vast amount of case law, especially from the higher courts – Court of Appeal, Supreme Court, that tests what succession means.

Common law has established that if one of two joint tenants (of whatever kind) dies, the tenancy automatically vests in the survivor – which is why it’s called ‘survivorship’. It has nothing to do with consent or policy or under-occupation or anything else.

But different housing acts later granted ‘statutory succession’ – survivorship was deemed to count as the one and only statutory succession:

• The Housing Act 1980 gave council tenants a raft of statutory rights including succession. Anything before this date couldn’t count as the one and only succession – see Birmingham City Council-v-Walker: House of Lords: 16/5/2007
• The Housing Act 1985 s.88-89 & s.113 lays down who qualifies to succeed a secure tenancy
• The Housing Act 1996 s.131-133 & s.140 lays down who qualifies to succeed an introductory

There can be no succession if the survivor has died, the succession has happened previously, the deceased tenant acquired the tenancy via a will or intestacy, or the tenancy had been assigned to the deceased previously as a ‘would be or potential successor’. Hence, there can only be one statutory succession.

When a sole tenant dies, their wife or husband (or civil partner from 1 May 2005) may succeed if they were residing with the late tenant at the time of their death and they were occupying as their ‘only or principal’ home. There is no legal requirement that they had to have resided with the deceased for 12 months prior to death.

If there is no wife, husband or civil partner, then a family member might qualify to succeed as above but they do have to prove they resided with the deceased for 12 months continuously. Family members are defined in s.113 or s.140 as above but included cohabitees. If a family member does indeed succeed and they are ‘under-occupying’, Ground 15A allows for the council to apply to court and if ‘reasonable’ and if they have offered ‘suitable alternative accommodation’ could compel the family to move to more appropriate accommodation.

The Housing Act 1988 s.17 lays down who qualifies to succeed an assured tenancy. As above, there can only be one statutory succession and (as above) there can be no succession if the survivor has died, succession has happened previously or the deceased tenant acquired the tenancy via a will or intestacy.

But the Housing Act 1988 s.17 only allows succession by a wife, husband, civil partner or cohabitee. There are no succession rights for family members.

For a secure tenancy that began after 1 April 2012, then the Localism Act 2011 changed statutory succession rights such that only a wife, husband, civil partner or cohabitee could succeed. Other family members of such tenancies no longer had a right to succeed.

But the Localism Act 2011 also allowed for ‘contractual succession’. It is for any social landlord to decide whether or not they wished to extend succession rights in this way. Some did, some did not, some have changed their minds.

So, from a potential successor’s point of view it’s worth checking their history of occupation, what kind of tenancy the deceased tenant had, when the tenancy commenced, whether tenancy follows the statute and their legal rights via Shelter or Citizens Advice or a law centre or solicitor.

As if all the above is not confusing enough, some social landlords have a ‘discretionary succession policy’. Any such policy is publicly available to anyone and probably set out on the landlord’s website. But it is misleading to label such a policy a ‘discretionary succession policy’, when it is really a ‘discretionary let’ and involves an allocation (Part 6 Housing Act 1996) and the granting of a brand new tenancy either of their current home or another somewhere else.

If this is indeed what is happening, then such a grant would start succession rights afresh!

I spend an inordinate amount of time explaining the above to social landlords all over England, whether they be councils or housing associations or rarely housing co-operatives. In my experience most social landlords don’t understand the differences between survivorship, statute, contractual or policy.

Their contracts/tenancies/leases are over-lengthy, confusing, written in ‘legalese’, inconsistent, out-of-date and ‘not fit for purpose’ and many contain unenforceable ‘unfair terms’ – see s.62 Consumer  Rights Act 2015. Their polices often suffer from the same problems!

Whatever, the real tragedy is that when dealing with death, bereavement, grief, loss, trauma and succession the attitude and culture of some staff is inhumane, disrespectful and indicative of a Dickensian age!