Certain Orwell tenants have rights in particular circumstances to pass their home and the tenancy that goes with it to another person.
Passing on a tenancy to a husband, wife, partner or to a certain family member on your death is called ‘succession’.
Transferring your current tenancy to such a person, for example, when you move to another home and pass your current home and your agreement to an adult son or daughter, is called ‘assignment’.
You may also be able to pass your home and your tenancy by way of a ‘mutual exchange’. This means two or more households swap with each other.
Automatic passing on of your tenancy
If you are a joint tenant your tenancy will continue to the other joint tenant when you die.
If you pass your tenancy to someone in your will we would apply to the court to end the tenancy unless the person is qualified to succeed in the ways described below.
Persons who may be qualified to succeed to or be assigned a tenancy
- Partner/civil partner – e.g. husband or wife, co-habitees and partners and same sex partners.
- Family Member – e.g. parents, grandparents, children, grandchildren, brothers and sisters, uncles and aunts, nephews and nieces. Step and half relatives are treated in the same way as full blood relatives.
- In some circumstances Orwell may consider permitting succession to others e.g. a carer or a lifelong friend who has lived with the tenant for at least 12 months and has no other home. Each case will be looked at on its own merits.
Different Assignment and Succession rights for different tenancies
Even if it is not a joint tenancy, so long as the tenancy (or a former tenancy from which you took your current tenancy as a mutual exchange) had not already passed on in this way previously, the following rights of succession and assignments apply:
To a partner who lives with the tenant as their main home at the time of the death or of the application to take over the tenancy.
- Secure and full assured tenancies have these rights, but note that for assured sheltered and very sheltered housing tenancies granted after 1st January 2008, if the partner does not need or want the support, and or care we would seek to move them to a more suitable home.
- Most shorthold and ‘starter’ tenancies do not have the right to assign, and the Association would end the tenancy following an ‘inappropriate’ succession to a partner. We would provide full details of our reasons. ‘Market rented’ shorthold tenants should check with their Housing Officer.
- Demoted tenancy – succession only applies if the partner has lived with the tenant for at least 12 months. No other succession and no assignment is permitted.
To a family member who has lived with the tenant as their main home for at least 12 months before the death or the application to take over the tenancy. The family member must be able to prove their residence. Orwell would seek to move the family member to more suitable accommodation if the home was ‘unsuitable’.
- Secure and full assured tenancies have these rights, but note that assured sheltered and very sheltered housing tenancies granted after 1st January 2008 do not have the right of succession or assignment to family members.
- Most of the Association’s shorthold and ‘starter’ tenancies do not have the rights of succession or assignment to family members.
A Tenancy may also be assigned by Court action e.g in divorce or separation proceedings. The Association’s consent is not required but please pass a copy of the Property Transfer Order to your Housing Officer immediately.
- A household member must advise us as soon as possible after the tenant’s death and provide further information to enable us to confirm whether anyone is entitled to succeed.
- You must seek written approval from the Association to assign, but consent will not be unreasonably refused.
- If there is more than one claim to succeed, a partner will have priority over a family member.
- If there is more than one family member entitled and claiming succession, and agreement cannot be reached between themselves, then the Association will decide or may ask a court to do so.
- Where we have a right to do so, we may ask the successor or assignee to move to more suitable alternative accommodation.
- We may end the tenancy where there is no right to succeed or to assign.
- In certain cases we will grant a new tenancy instead.
- In sheltered and very sheltered housing we will ask a successor to sign a support contract.
- Arrears and responsibility for breaches on the former tenancy will continue where a tenancy passes to a successor or assignee.
- In the case of a qualifying succession we will endorse the tenancy agreement to confirm the succession.
- Before any formal assignment of the tenancy can take place, you must receive Orwell’s written consent.
- To validate the assignment, the Association and the assignee must sign a ‘Licence to Assign Tenancy’ to confirm the passing of the tenancy, and the tenant and the assignee must sign a Deed of Assignment of Tenancy, that protects the former tenant from responsibility for breaches by the assignee.
- An assignment will not be lawful until these documents are signed before the change takes place.