The Ghost of Tenants Past

November 7th 2023

In England, the majority of private residential properties are let to a tenant by way of an Assured Shorthold Tenancy (AST). One common misconception amongst landlords of ASTs, is that death of a tenant determines the tenancy, thus bringing it to an end. If a tenant dies, there are various steps that have to be taken by the landlord to regain possession of the property. If the landlord fails to follow these steps and enters the property to take back possession, this will be an illegal eviction; even though the tenant is deceased.

Is the tenancy a joint tenancy?

Firstly, it is important to note that if an AST is granted to more than one tenant, the surviving tenant retains the right to live in the property under the rules of survivorship. If the landlord wishes to evict the surviving tenant, they will have to serve the appropriate notice.

Where there is only one tenant, who has died, there are various factors which will determine who acquires the rights and obligations of the tenant under the AST and the process required by the landlord to recover the property.

Statutory Rights of Succession:

The Housing Act 1985 provides a right of statutory succession allowing a spouse or civil partner a right to succeed to the tenancy, as long as they were occupying the property as their principal home with the tenant, immediately before the tenant’s death. Alternatively, if there is no spouse or civil partner, a person can succeed to the tenancy if it is expressly mentioned in the AST that they have a right to do so, following the death of the tenant. The person with the statutory right of succession will then acquire all the obligations of the tenant under the AST. If the landlord wishes to evict the successor, they will have to serve the appropriate notice.

The Deceased’s Personal Representatives/Executors:

Where there is no right of succession, the personal representatives of the tenant’s estate will acquire the obligations of the tenant and the landlord should serve the appropriate notice to bring the tenancy to an end. Service of the notice will depend on whether the tenant died intestate, whether there are any executors or whether a Grant of Probate or Administration has been issued. If a Grant of Probate or Administration has not yet been issued, or if there are no executors, the tenancy is temporarily vested in the Public Trustee and the landlord is required to serve the Notice on the Public Trustee, along with the relevant form.

Are there any occupants in the property who are not ‘tenants’?

Further issues arise where there are occupants in the property, who lived with the deceased tenant and who are not defined as a ‘tenant’ under the AST. This situation may give rise to a common law tenancy, which would similarly require the appropriate notice to end the tenancy.

If you are a private residential landlord and are looking for some advice regarding determining an AST at your property, or would like us to serve a notice to quit on your behalf, please get in touch here or call on 01295 204000 and we would be happy to assist.

Under English law, an AST does not end automatically on the death of a tenant.