Whilst being an unpleasant topic to think about, it is equally important to understand what happens when a tenant dies mid-tenancy. The answer may not be as straight forward as you’d think...
The first point that you may not have realised is that when a tenant dies, their tenancy doesn’t die with them. However, depending on the type of tenancy, the outcome can be quite dissimilar.
In the case of a joint tenancy (a tenancy in which more than one person has signed the tenancy agreement), the tenancy will become the sole property of the tenant who remains on the tenancy agreement.
With a sole tenancy, it really boils down to what type of Tenancy Agreement it is.
Still within its fixed term:
In this case, the remainder of the fixed term is a property right and therefore the ownership will be passed to the deceased tenant’s Personal Representatives* as part of the tenant’s ‘estate’ (everything he owns when he dies).
Periodic ‘Statutory’ Tenancy:
The Rent Act 1977 states that the tenancy will either be passed to the spouse (if there is one) or in some circumstances, it will be passed to a member of the tenant’s family living at the property at the time of death (see the act for further details).
Periodic Assured Tenancy:
The Housing Act 1988 states that it will pass to the spouse (if there is one). In the case of an assured shorthold tenancy this will also happen, however in this situation the landlord is able to easily end it by serving a section 21 notice (see the act for further details). A landlord is also able to recover possession through the courts under ground 7.
Nobody eligible to succeed the tenancy:
Under the ‘succession’ provisions stated in the Rent Act 1977 or the Housing Act 1988, the tenancy will pass to the tenant’s Personal Representatives as part of the tenant’s estate, this is much the same as with a fixed term tenancy.
What Happens If the Landlord Wants to End the Tenancy?
In a situation in which the tenant dies mid-tenancy, in most cases the landlord will want to take back the property and put it on the market to be re-let, however they do not have the right to do this. In order to end the tenancy, the landlord must obtain permission from the tenant’s Personal Representatives.
In order to formally end the tenancy, the landlord will need to service notice on the Personal Representatives. If the Personal Representatives don’t agree to giving up the possession (or if there is somebody else living in the property), a possession order must be obtained through the courts. The correct type of possession order to be served is dependent upon the type of tenancy agreement:
Assured Shorthold Tenancy – Section 21 Notice
Assured Tenancy – Section 8 Notice, citing ground 7
Common Law/Unregulated Tenancy – Notice to Quit