Succession (Scotland) Act 1964
The Succession (Scotland) Act 1964 allows tenants to leave the remaining term of the lease to someone in their will, unless there is an express term in the lease that forbids an assignation or such a bequest.
Act does not apply to most residential tenancies
These provisions do not apply to leases covered by the Rent (Scotland) Act 1984, the Housing (Scotland) Act 1987, the Housing (Scotland) Act 1988, the Housing (Scotland) Act 2001 or the Private Tenancies (Housing) (Scotland) Act 2016.
It should be noted that it is highly unlikely that a case will arise in which the Succession (Scotland) Act 1964 applies. Housing legislation will cover most circumstances.
Succession (Scotland) Act 1964
Those allowed to succeed to the tenancy under the Succession (Scotland) Act are people who would have been entitled to a share of the tenant's estate if s/he had died without making an effective will or any will at all.
When the bequest is invalid or the tenant has not left the tenancy to anyone then the lease will 'vest' in the executor (becomes the property of the executor) under the 1964 Act. This is subject to the rights of a surviving spouse or civil partner on intestacy, (where there is no valid will). On intestacy the right of a surviving spouse or civil partner to the tenancy is limited by how much the tenancy is worth. [1] If the tenancy is worth more than the specified value, the surviving spouse or civil partner will not be able to live in the property but will receive compensation of the equivalent in cash. This is unlikely to have a significant impact as the upper value limit is currently set at £300,000.
If the surviving spouse or civil partner does not take up the lease it will revert to the executor who can then assign it to any one of the people entitled to succeed to the tenant's estate, whether or not there is a prohibition on assignation.
The landlord may agree to the bequest either explicitly or implicitly. If s/he rejects the bequest then the lease will revert to the executor who can then assign it to any one of the people entitled to succeed to the tenant's estate. This applies whether or not there is a prohibition on assignation. Both executor and landlord are entitled to end the lease if no other person is entitled to succeed to the tenancy under the law and the executor informs the landlord.[2]
Last updated: 17 January 2020