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Forum Home  →  Discussion  →  Housing costs  →  Thread

liability for rent arrears for succession tenant

splurge
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Welfare officer - Peabody, London

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Hello guys

Appreciating that this isn’t strictly welfare related, but is putting a tenancy at risk.

My friend is about to succeed a Council tenancy from her deceased mother. The council have said she is liable for her late mothers arrears. Now i appreciate that if she agreed to take arrears on as a condition of tenancy that would be a contractual agreement, but she hasn’t. She was just informed that she had to pay the arrears off having signed a tenancy agreement with no mention of this.

To my knowledge, debts can only be recovered where there is a liability to pay them, and if someone dies, liability ends, unless someone specifically agrees to take it on.

What are the thoughts of others?

HB Anorak
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Benefits consultant/trainer - hbanorak.co.uk, East London

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This looks like a job for Elliot Kent or Timothy Seaside.  Shelter website refers to case law saying that private sector Rent Act successors are not personally liable for rent arrears, but suspended possession orders that existed prior to the death put the successor udner a practical compulsion to continue with the arrangement.  They suggest the same principles apply to social tenancies.  But there are people on here (such as the two I have mentioned) who know about this stuff.  It may even be Elliot who wrote that weg page

Elliot Kent
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Succession as such isn’t something which the council has to agree to or can make subject to conditions - it is something which happens by operation of law when certain conditions are met. The specific circumstances in which succession can occur will depend mainly on (1) the sort of tenancy the mother had (2) when it was entered into (3) whether there has already been a succession (or an event treated as a succession) and (4) potentially the terms of the tenancy agreement.

If the person involved is entitled to succeed in this way, then they become the tenant immediately following the death and that is when their liability begins. The rent arrears due up to that point will be a debt owed by the estate and if the estate cannot meet them, they will be at an end.

However sometimes when people are talking about succession, they are referring to what is sometimes called ‘non-statutory’ succession. Essentially this is in reference to the idea that it will sometimes be appropriate for the landlord to grant the occupant a new tenancy in circumstances where they are not entitled to succeed. In this situation, it is at least conceptually possible to make the offer of the property subject to conditions.

I would suggest that your friend contacts their local Shelter hub for advice on which of these situations is most likely to apply and on how best to navigate it.

HB Anorak - 20 November 2020 01:31 PM

It may even be Elliot who wrote that weg page

Haha… no they do not let me near the weg pages… Timothy knows the housing stuff far better than I do anyway.

[ Edited: 20 Nov 2020 at 02:04 pm by Elliot Kent ]
splurge
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Welfare officer - Peabody, London

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Hello to you both

Thankyou both so much for your responses, it is really good of you to bring forth your knowledge, I will pass this on to her.

best wishes to all

danny

Timothy Seaside
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I think the main thing I’d be worried about would be if this is a genuine succession and the council had a possession order. The order would still exist (because the tenancy would still exist) and any breach could (in principle) lead to repossession.

But it’s quite a complicated subject - and, like Elliot, I would strongly advise her to get specialist housing advice (and although I still feel some loyalty to Shelter, I have to point out that other housing advisers are available).

GVT
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I have a related question which I hope is okay to post in this thread.  I have a client who remained in his parents’ property (a secure council tenancy in the father’s sole name) following their deaths. In fact he moved in after his father’s death and cared for his mother until her death and then remained in the property.  He continued to pay their rent and he informed the Council many years ago of his mother’s death.  He was later visited (about 5 years ago) by a council officer regarding the demolition and redevelopment of the block and he advised them that he was not the original tenant and that both of his parents had died. He was expecting them to take some kind of action, but they didn’t until very recently after a lot of pestering from us.  In Feb/March his job ended due to Covid and he tried to claim pension credit (he was already of pension age).  He wasn’t eligible for pension credit because his private pension was too high, but they said they had passed his details on to the Council re a HB claim.  This didn’t appear to happen, so he made an HB claim himself, but the council (landlord) would not provide a Use and Occupation letter until the notice served to end his father’s tenancy had expired.  HB was refused on the grounds that he wasn’t liable for rent. Some Council Tax reduction was awarded. My client’s application for discretionary succession has now been approved.  I had thought that he would then become liable for rent from the date that his mother died, but in fact I am not sure that this is the case as it was a discretionary succession not a statutory one.  My client continued to pay from his savings so there isn’t a debt on his parents rent account as far as I am aware.  It’s just that he has significantly depleted his savings.
My questions is. Can he be deemed liable for use and occupation before the NTQ served on his father’s estate expired and if so could we get HB backdated to the date of the original claim (or make a late challenge on the refusal of the original claim).  Thanks in advance!

Timothy Seaside
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With the caveat that there are no dates and no details of tenancy agreements in your post (which could make some difference to the situation), I will try to give the most likely answer (involving some speculation).

It sounds as though your client’s mother succeeded to her husband’s tenancy on his death. On her death, your client was (probably) not entitled to succeed to her tenancy, but the LL didn’t give notice so the (now non-secure) tenancy may well have been inherited by your client (under intestacy rules). He then continued to pay the rent, and if he hadn’t, presumably he would have been evicted. When he applied for HB he should have been treated as liable for the rent - Reg 8(1)(c)(ii) HB Regs (pension age). Assuming HB had all the information, I would certainly ask for an any time revision (for official error) of the original decision not to treat him as liable for the rent. And actually, as it was a council tenancy, I think it’s probably arguable as official error anyway.

Strictly speaking, the LL’s NTQ to the father would probably have no effect because I am assuming the mother succeeded to the tenancy on his death, and so the NTQ should have been served on her estate or on whoever inherited it. But from a pragmatic point of view, I think we might as well agree that the NTQ opened the door for the LL to grant your client his own (completely brand new) tenancy.

N.B. The dates of tenancies and of deaths could change the outcome in terms of succession, but I don’t think it makes any difference to the fact that he should have been treated as liable for the rent when he claimed HB (either because he was (Reg 8(1)(a)) or because the person who was liable wasn’t paying, etc. (Reg 8(1)(c)(ii)).

Rehousing Advice.
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Eh?

Either he was a tenant by conduct of the landlord by accepting “rent”, or its refund.

Independent legal advice needed.

Timothy Seaside
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MartinB - 18 December 2020 11:06 AM

Eh?

Either he was a tenant by conduct of the landlord by accepting “rent”, or its refund.

Independent legal advice needed.

The situation with succession to secure tenancies is governed by Part IV of the Housing Act 1985. On death, a secure tenancy either passes automatically by succession, or it becomes a non-secure tenancy and continues until somebody ends it (usually either by surrender or NTQ). It is property so it forms part of the deceased’s estate and can be inherited in the same way as any other property can. As long as the old tenancy continues there is no possibility of any new tenancy being created.

As you say, the client could get independent legal advice to try to work out exactly what has happened (I suppose this might be worthwhile if he is considering right to buy or something - although it’s probably not going to make any difference unless the father died before 1980 or the tenancy agreement allows extra succession), but as he has got what he wants (a tenancy), I think the pragmatic solution now is to deal with the decision not to award HB.