Ending Joint Tenancies and Successions
Issue 1
developed
with Tenants
Chesterfield
BOROUGH COUNCIL
Housing Services • www.chesterfield.gov.uk
Ending Your Joint Tenancy and Successions
Joint Tenancies
If you are a joint tenant
You should bear in mind that each tenant is jointly and individually liable
for the tenancy. This means that you are each fully responsible for meeting
the obligations of the tenancy.
For instance, you would both be responsible for all of the rent, even if one
of you moved out. As long as you remain a joint tenant you are
responsible for that tenancy. Any breach of the tenancy agreement is the
responsibility of both tenants.
In the same way, if one of you signs a termination form ending the
tenancy, the whole tenancy will end, even if the other tenant does not
know about the form. If you owe rent arrears when the joint tenancy ends,
each of you will be responsible for paying them off. In other words, if one
person won't pay their share, we will require the other person to pay in full.
In the event of one tenant ending the joint tenancy the Council may not
offer a sole tenancy to the remaining joint tenant. We will consider future
under occupancy of the property, breaches of tenancy conditions eg rent
arrears, anti-social behaviour etc.
Ending a joint tenancy
Ending a joint tenancy is the tenant's responsibility. You should seek
independent legal advice. When one of you dies, the remaining spouse or
partner can succeed to the tenancy, but only if neither of you had
succeeded to it in the first place. (See notes on succession)
We recommend that you take independent legal advice from the Citizens
Advice Bureau (CAB), Law Centre or solicitor before changing your
tenancy.
Joint to Sole Tenancy
A joint tenancy can become a sole tenancy in the following
ways.
1. Through the courts under the Family Law Act 1996, or the Children Act
1989, or (as part of divorce proceedings) the Matrimonial Law Act.
2. In some circumstances one joint tenant can end a joint tenancy and we
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Ending Your Joint Tenancy and Successions
will then grant a new sole tenancy. However, we and all joint tenants
must agree to this plan.
3. If the other joint tenant has not lived in the property for over 12 months,
you must try your best to contact them and you must tell us where they
are. If neither you nor we can make contact with them, we may accept
a termination of tenancy from you (as the remaining tenant) and may
grant you a new sole tenancy in line with our Allocations Policy.
4. Through the court system via the Family Law Act 1996 or as part of
divorce proceedings under the Matrimonial Law Act in a court of law or
as part of proceedings under the Children's Act 1989 - we cannot
change a joint tenancy, nor take sides in any dispute.
If your relationship breaks down, we cannot exclude one joint tenant from
the tenancy, nor change the locks to stop a joint tenant getting in. If the
relationship does break down, it is very important that you seek
independent legal advice as soon as possible.
Tenancy Succession
What is succession?
When a tenant dies, the secure tenancy passes to the tenant's spouse
(husband or wife), the tenant's opposite-sex or same-sex partner – or a
family member*. This is called succession and the person who gets the
tenancy is called the successor.
Succession to a tenancy can happen only once. So you cannot be a
successor if succession has already occurred.
A successor who was not the tenant's spouse must have been living at the
property as their only or main home for at least 12 months before the
tenant died and be able to provide evidence of this if required.
* A family member is defined as the deceased tenant's parent,
grandparent, child, grandchild, brother or sister, aunt, uncle, niece,
nephew, step relations and half relations (a half relationship is where
you are related to someone through your mother or father but not both).
A carer cannot be a successor.
What if the tenancy was held jointly?
If the tenant who dies was a joint tenant, the tenancy continues and
remains with the surviving joint tenant provided that person continues to
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Ending Your Joint Tenancy and Successions
live there as their only or main home. This counts as a succession, so
when this joint tenant dies, there can be no further succession.
What if there are several people who could be the successor?
By law, preference always goes to the tenant's spouse or partner if they
were living in the home as their only or main home at the time of the
death.
If there is no spouse or partner and there is more than one family member
who could succeed to the tenancy, then the family members must decide
between them who will succeed.
If they cannot agree, we will decide for them.
Can a child be a successor?
Yes, a child can succeed to the tenancy but an adult must hold the
tenancy on trust until the child reaches the age of 18.
Is a new tenancy created when a person succeeds?
When a successor takes the tenancy, there is no new tenancy. This is
because the successor is taking over the original tenancy automatically
under the rules. So the interest in the property and the obligations of the
tenancy (that is, both the rights and the responsibilities) pass to the
successor. For instance, any rent arrears will still be owed by the
successor.
What happens if the tenant dies and there is no-one to
succeed?
If the tenant dies and there is no-one to succeed, the tenancy does not
normally end automatically. The executor of the estate (usually the
person named as executor in the tenant's will, who deals with their
possessions) can give up the tenancy to the Council, but if they don't do
this we are not entitled to possession while the tenancy still exists, so the
tenancy continues. However, the tenancy will no longer be secure, so we
can serve a Notice to Quit on the executor or on the deceased tenant's
personal representative if they have taken out probate or letters of
administration (these are the legal documents entitling the personal
representative to deal with the deceased person's estate).
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Ending Your Joint Tenancy and Successions
If no-one is administering the deceased tenant's estate, the Public Trustee
takes over and we can serve notice on the Public Trustee to bring the
tenancy to an end.
For more on what to do when someone dies, please get advice – your
local library, Law Centre or Citizens Advice Bureau may be able to help.
What happens if I succeed to the tenancy and the property is
larger than I reasonably need?
If the tenant dies and you, as a family member, succeed to the tenancy
(where there is no spouse or partner to succeed) and we judge the
property is larger than you need, then we can, after six months from the
date of death, seek possession of the property.
We must offer suitable alternative accommodation. We can serve a Notice
of Seeking Possession after six months and before 12 months since the
tenant's death. If you do not move out and into the alternative
accommodation offered, we will apply to the county court for possession of
the original property.
What happens when the tenant dies and the family member left
in the property cannot succeed?
When the tenant dies and that tenant was a successor, then the tenancy
cannot be succeeded to again. This means that if you were related to or a
carer of the deceased tenant and lived in the tenant's home, the tenancy
cannot pass to you. We will encourage you to apply for housing for
yourself and will consider your circumstances at the time. We will also
take into account your relationship to the deceased tenant and the length
of time that you lived with them.
If the property you were living in is larger than you need, we may offer you
smaller accommodation.
If we do not offer alternative accommodation we will give you advice and
assistance to seek private rented or other accommodation.
If you refuse to move out, we may have to take legal action to remove you.
If you have any questions about succession or ending a joint tenancy
please contact us for advice.
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Ending Your Joint Tenancy and Successions
Housing Solutions Centre
Tel: 01246 345700
Chesterfield Law Centre
44 Park Road • Chesterfield • S40 1XZ
Tel: 01246 550674 for advice on the telephone
Tel: 01246 204570 for advice on the Mincom
Email: [email protected]
Citizens Advice Bureau
6-8 Broad Pavement • Chesterfield • S40 1RP
Tel: 01246 209164 for advice on the telephone
Email: [email protected]
Advice is also available online at www.adviceguide.org.uk
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