Succession and Scottish secure tenancies

On the death of a Scottish secure tenant the tenancy passes to a 'qualified person'. [1]

In all cases, regardless of the level of priority, the house must have been the only or principal home of the qualifying person at the time of the tenant's death. The test of whether a property is a principal home will be whether the person concerned has such a 'real, tangible and substantial connection' with the house in question rather than any other place of residence. [2] Such a connection only exists if there are signs that the person has made substantial use of the home and has shown an intention to use the home in future. [3]

In addition, where the landlord is a fully mutual housing cooperative, any qualified person must also apply to become, and be accepted as, a member of the cooperative.

There are three levels of priority for succession to a Scottish secure tenancy. [4]

First priority

The first priority is accorded to:

• the tenant's spouse or civil partner

• someone living with the tenant as husband or wife: this can include a same-sex partner

• a surviving joint tenant.

There is no length of residency requirement if a spouse, civil partner or surviving joint tenant succeeds to the tenancy. 

For someone living with the tenant as husband or wife, there is a requirement that the house must have been their only or principal home for a minimum of 12 months prior to the death of the tenant. The length of residency is only counted from the point at which the tenant notified the landlord that the person in question had moved in. [5] Prior to November 2019 there was six month residency requirement with no requirement to have notified the landlord. 

Second priority

If nobody qualifies on the first level of priority, or if a qualified person in this group declines the tenancy, then the second level of priority would go to a member of the tenant's family who is at least 16 years old. 'Family' is defined in the Housing (Scotland) Act 2001. [6]

There is a 12 month residency requirement and length of residency will only be counted from the point at which the tenant notified the landlord that the person in question had moved in. [7]

For succession claims prior to 1 November 2019 there was no length of residency requirement for a member of the tenant's family. They only had to show that the property was their only or principal home at the time the tenant died. 

Third priority

If nobody in the first two priority groups qualifies or if a qualified person in either group declines the tenancy, then the third level of priority would go to a carer who is aged at least 16 and who had given up her/his only or principal home to care for the tenant or a member of the tenant's household. The legislation does not provide a definition of 'carer'. The key factor is whether someone has given up her/his only or principal home to provide care.

There is a twelve month residency requirement and length of residency will only be counted from the point at which the tenant notified the landlord that the person in question had moved in. [8]

For succession claims prior to 1 November 2019 there was no length of residency requirement for a member of the tenant's family. They only had to show that the property was their only or principal home at the time the tenant died.

The Scottish secure tenancy (SST) allows two rounds of succession. The right of second succession means that when a qualified person who had succeeded to the tenancy dies, one further qualified person can succeed. [9]

Where the tenancy has already passed to a second qualifying person who then dies, the tenancy ends except where there is a joint tenant. [10]

If someone who is not a joint tenant is living in the property and would have succeeded but for the fact that a second succession has already taken place, then they are entitled to remain in the property for six months. They will not be a Scottish secure tenant, or short Scottish secure tenant. [11] This means that the occupying tenant has no statutory security of tenure and the entitlement is designed purely to allow time for her/him to find alternative accommodation. The landlord also has the opportunity to decide if it would be possible to allocate her/him the tenancy under the normal letting rules.

Successions that took place prior to tenancies converting to an SST should not be counted. The wording of Section 22 of the Housing (Scotland) Act 2001 allows for two rounds of succession in an SST. It does not mention including successions that happened in the property before converting to an SST in the total rounds.

It is worth checking local policies, as some local authorities or registered social landlords may offer contractual succession rights that go beyond the statutory provision.

Where a property has been designed or substantially adapted for someone with particular needs, there are restrictions on who is able to succeed to the tenancy. Only a spouse, civil partner, cohabitee or joint tenant can succeed automatically to the tenancy, assuming that s/he is a qualified person. If a member of the tenant's family or a carer wishes to succeed, s/he will have to demonstrate that s/he has special needs which require accommodation similar to that provided by the specially adapted property, assuming that s/he is a qualified person. [12] In the case of a second succession, any qualified person will have to demonstrate that s/he has special needs that can be met by the property. [13] Regardless of which round of succession applies, if someone would otherwise be a qualified person but is prevented from succeeding to the tenancy because s/he does not have special needs, the landlord must make other suitable accommodation available to her/him. [14]

If there is more than one qualified person at any level of the hierarchy of succession, for example more than one family member where there is no spouse or partner, they can decide amongst themselves about which person should succeed. If they cannot agree within four weeks of the tenant's death, or within four weeks of the date they are notified by the landlord of their right to succeed, then the landlord has to decide who will succeed. [15]

Anyone entitled to succeed but who does not wish to do so must give written notice within four weeks of the tenant's death, or within four weeks of the date s/he was notified by the landlord of her/his right to succeed. S/he must then move out of the property within three months and is only liable for rent due for the period that s/he occupied the property after the tenant's death. [16]

Where the client appears to be a qualified person, but the landlord is disputing this, the following steps may be helpful.

In the first instance discussion and negotiation with the landlord might resolve the situation.  

However, if this is not successful it can be useful to gather evidence which supports the client’s succession claim.

Challenging length of residency

In most cases, the adviser should seek to establish what date the tenant notified the landlord that the person was living in the property. Evidence could include any official correspondence, letters or emails, but careful note should also be made of any phone calls or conversations with housing officers. 

However, rules on succession change on 1 November 2019. Prior to this date there was no requirement to have informed that the landlord that the person was residing in the property. The test was whether the property could be shown to have been the person's 'only or principal home' for the relevant period. The relevant period was:

• cohabiting partners- six months prior to the tenant's death

• family members and carers - at the time of the tenant's death. 

The change in the rules was effectively a change to the tenant's terms of their tenancy agreement. As such there was a legal requirement for the tenant to have been given notice of this change. [17] In most cases, councils and housing associations wrote to all tenants informing them of this, but it is possible not all did. 

If challenging a succession which would have been successful under the old rules, advisers should request a copy of the notification sent to the tenant. Where the landlord cannot produce evidence of this, a challenge may be possible. 

If it can be shown that the tenant was not notified, then the client will be required to provide evidence that shows that the property was their only or principal home during the relevant period. Such evidence may include:

• proof of address or change of address within the relevant time period,

• supporting statements from health professionals or others who can verify the client was living in the property.

• evidence of bills paid or fuel payments.

Advisers should consult with a specialist housing law solicitor for further advice on taking the matter forward.

Where a client does not have a legal right to succeed to tenancy for example because they do not meet the residency requirement, there might be scope to advocate for the client to be considered for a tenancy of their own at the property address or in a new tenancy offered by the same landlord under an ‘exceptional circumstances’ clause if there is scope for this within the landlord’s allocation policy.

The Scottish Government guidance to Social landlords Section 7.13 states:

‘7.13 Depending on the individual circumstance there will sometimes be cases where a landlord considers it appropriate to allocate a tenancy to the applicant, for example the existing tenancy or the tenancy of another property. In these cases a new tenancy will be granted and it will not be a succession. By including an ‘exceptional circumstances’ clause in their allocations policy, landlords will give themselves the flexibility to allocate a tenancy where an individual does not have the right to succeed to the tenancy but the landlord believes there to be circumstances that justify allocating them a tenancy.’

Although the legislation does not allow for a right of appeal against a decision made on succession, good practice would suggest that landlords should have in place clear and well-publicised internal mechanisms for appeal in such cases. [18] It might therefore be useful to check the landlord’s written policies.

Any appeal should ideally be made in writing, should make reference to the relevant legislation and if possible provide evidence in support of the client’s claim.    

If this appeal is unsuccessful there is the possibility of making a complaint to the SPSO on your client’s behalf, for example if the landlord has failed to comply with their internal procedures or failed to properly investigate the circumstances surrounding the succession.

There is no provision to raise court proceedings in the Sheriff Court, however there may be potential to raise Judicial Review proceedings. Specialist legal advice should be sought. It would need to be established that the decision of the registered social landlord was so unreasonable, no other registered social landlord would have made such a decision. It should be noted that there is a three month time limit which runs from the point of the appeal being refused.

If succession is in dispute the landlord is likely to take steps to end the client’s occupation of the tenancy. Potentially this may be defended on the basis that the client's right to succeed the tenancy should be recognised. If eviction proceedings are raised the client should be referred to a specialist solicitor.