Succession to an assured tenancy

A tenancy is a right in property and so can also pass on someone's death. The Housing (Scotland) Act 1988 ('the 1988 Act') introduced assured tenancies and limited succession rights.

Such rights are only applicable to the tenant's spouse or civil partner or someone who was living with the tenant as if they were husband, wife or civil partner. [1]

To succeed to an assured tenancy, the tenant who has died must have been the original tenant, and the tenant's spouse or civil partner must have been occupying the house as their only or principal home. [2]

If the tenant was a successor to the tenancy, there is no further right of succession. 'Successor' is defined in s.31(2) of the 1988 Act and includes surviving joint tenants. [3] The landlord would then be entitled to regain possession, providing that they begin possession proceedings within a year of the death. [4]

The successor's right is to a statutory assured tenancy, not a contractual assured tenancy. [5] It should be noted that a statutory assured tenant holds the tenancy on the same terms and conditions as a contractual tenant excluding the terms that provide protection for rent increases and provisions for ending the tenancy. [6]

From 1st December 2017, where an individual succeeds an assured or short assured tenancy, the tenancy ceases to be an assured (or short assured) tenancy and will become a private residential tenancy. [7] See the section on private residential tenancies for more information.