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Ending a Tenancy (England) | England | Rent Act Tenancies (England)

Procedure following death of Regulated tenant – Rent Act Tenancy 1977

30 Sep 2020 | 3 comments

Apologies for this being so long but I hope the questions and answers will be a helpful resource for others.

I am seeking advice in respect of our Regulated Tenancy where the tenant died on the 30th August 2020. The tenancy is in a grade 2 listed building.

The tenancy dates back to 1962, on Mr A’s death the tenancy passed to his wife Mrs A.

Mrs A’s adult daughter and adult grandson moved back in with her and resided there for over 2 years before she died.

The rent is registered with the Rent Officer under the Rent Act 1977.

Please can you advise me on the following:

I understand that the daughter or grandson may decide by agreement which should be granted an Assured Tenancy if either of them want this. They have said they want to remain but they don’t yet know that an Assured Tenancy will be at market rent – circa three times the current rent.

  1. If they don’t agree who should be granted the Assured Tenancy. Who has to apply to the County Court for this to be determined, them or the landlords?

  2. Could it be that the right to the assured tenancy is determined by the deceased will? ie: If she left everything to her children or had no will then her daughter’s wishes for the tenancy override her grandson’s?

  3. Should I obtain a signed letter and should it be witnessed, confirming their agreement to who is granted the tenancy?

  4. Is a market rent just based on similar size and period properties in the area or does it consider the interior condition?

  5. If they don’t want to remain at market rent. Any advice for them getting rehoused?

The last rent payment was made 1st September (for the month of September.) from the deceased’s bank account. The daughter has asked for our account details to continue paying rent from the 1st October.

  1. Should I provide this and accept rent from the daughter or grandson immediately?

  2. I found this reference, “ground 7 specifies that acceptance of rent after death of former tenant will not be regarded as creation of a new tenancy unless the landlord has agreed in writing to any change in the terms of the tenancy such as the amount of rent”. Is this correct in this case?

  3. I found this reference, “The tenancy passes to the Personal Representatives of the deceased as part of the Estate. The Estate (not the relatives) pay the rent until the tenancy is ended. Personal Representatives can serve a ‘notice to quit’ on the landlord or the landlord can serve ‘notice to surrender the tenancy with a witnessed deed’ on the Personal Representatives” and “if a tenant dies: without a will/with a will but without an executor…the tenancy is transferred temporarily to the Public Trustee …..post or deliver a letter to the tenant’s last known address (adressed toThe Personal Representative of [full name of the tenant who died] of [last known address for the tenant who died]” saying you’re giving written notice – you do not need to get proof of this ….send a copy of the notice and a completed NL1 form to the Public Trustee…register the notice with the Public Trustee”. Is this correct in this case? Is it only done if an Assured Tenancy isn’t being taken on by the daughter or grandson? Or does it have to be done to end the Regulated Tenancy and dated for it to end the day before the new Assured Tenancy commences?

Setting up the new Assured Tenancy

  1. Do all the rental regulations for new Assured Shorthold Tenancies apply to setting up a new Assured Tenancy in this circumstance? ie: Providing the prospective tenant with How to Rent Guide, doing Right to Rent checks on anyone who will live there, providing copies of EPC (up to date), Gas Safety Certificate (up to date) and EICR (it was 5 years old in June), and checking fire and carbon monoxide alarms (installed) before new tenancy commences?

  2. What happens to others living at the property? Currently grandson’s partner also lives there and I’ve learnt that the grandaughter either has or intends to move back in. Do we have to accept that they can have new people living there as they choose but not named on the tenancy. What should I do if in the future numbers exceed Statutory Overcrowding?

  3. I would like to have a written tenancy agreement with clauses about damage, nuisance, pets, rubbish and smoking as these have all been issues there. Can I do that? – they smoke in the property, there has been attempts to grow cannabis in an outhouse (not plants when we discovered it, just evidence of equipment and cannabis plant feed – so no criminal prosecution), they have a dog and there have been major infestations of rats (it’s near a river) attracted by the dog food and possibly cannabis plants (rats chewed through the cooker cable). They have dumped tons of rubbish, old motor scooters, white goods, oil and tyres from old cars, in the basement and garden that isn’t part of their tenancy. When I locked the basement to prevent further access they changed the lock. Is any of this grounds not to grant a new tenancy?

  4. Can we expect a tenancy deposit so we have some way to seek recompense if damage is done and rubbish is dumped? What if they refuse to pay a deposit? We have felt powerless to enforce anything with the Regulated Tenancy and without a deposit.

  5. Can the terms of the new Assured Tenancy say that internal repairs should be notified to the landlord and that work should not be done by the tenant without the written authorisation of the landlord? Under the Regulated Tenancy internal works were the responsibility of the tenant and we’ve had major problems with water damage in the shop below from their inappropriate plumbing attempts as well as unauthorised work and damage to a listed building.

  6. Should I notify the Rent Officer that the tenancy has ended and process for that?

The tenancy really needs complete refurbishment and work to protect it’s listed status, it really isn’t fit for habitation as it is although it meets all statutory requirements.

  1. I understand the tenant can be moved to another flat on a temporary or permanent basis on an Assured Tenancy if they agree. But if the tenant doesn’t agree what would be the grounds for getting it agreed and what procedure should we go through? Would we be expected to house everyone living there or just the tenant?

Answer

3 Comments

  1. guildy

    The legislation governing this is paragraph 5, schedule 1, Rent Act 1977:

    Where a person who—

    (a) was a member of the original tenant’s family immediately before that tenant’s death, and

    (b) was a member of the first successor’s family immediately before the first successor’s death,

    was residing in the dwelling-house with the first successor at the time of, and for the period of 2 years immediately before, the first successor’s death, that person or, if there is more than one such person, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be entitled to an assured tenancy of the dwelling-house by succession.

    1. The legislation doesn’t say so presumably either party can apply.
    2. The legislation doesn’t give a will any extra authority but it might be evidence for the court when making a decision (if an agreement can’t be reached)
    3. Yes, it would be useful to have a written agreement. Doesn’t need witnessing.
    4. Market rent will be based on the value of the property if it were advertised as is.
    5. They could speak to the local authority
    6. It would be ideal to have agreed who is the tenant first. If no agreement by October, a letter could be sent saying any rent received will be regarded as being from whoever is ultimately agreed to be the successor assured tenant (or as decided by the court).
    7. Ground 7 only applies to the death of an “assured/assured shorthold” tenant. In your case they haven’t died – it was the Rent Act tenant that died.
    8. The legislation has succeeded the tenancy so not relevant.
    9. You will only need to supply EPC, gas safety and electrical safety (which will have to be 18th edition so existing might not be enough). You should also check all smoke and CO detectors.
    10. Only one person is entitled to the tenancy by succession but you can agree others if you wish. Any refusal would have to be reasonable (e.g. overcrowding).
    11. We have a written agreement on the website but they would have to agree to sign it. You didn’t have any right to refuse access to the basement from what’s described.
    12. You can ask for a deposit but if they refuse there won’t be anything that can be done.
    13. Our agreement requires them to notify about repairs. It’s unlikely to have been a valid term that they were liable for repairs under the Rent Act tenancy.
    14. Not sure if this is necessary. You could contact your local rent officer.
    15. You could attempt to seek possession on ground 9 (suitable alternative accommodation). The court order could be asked to state that they can return upon completion of works. For details of what is deemed “suitable accommodation”, see part 3 of schedule 2, Housing Act 1988. This would be very difficult and would require a solicitor.
  2. Stella

    Thank you, that is very helpful. Please note re:
    11. The rent register states it is only a ‘1st, 2nd and 3rd floor maisonette’.
    13. The landlord was responsible and fulfilled the responsibility for ‘repairs and external decorations as per Section 11 Landlord and Tenant Act 1985’. The tenant was only responsible for ‘internal decorations’. The grandson and daughter’s partner just did inappropriate work with no notice such as attempting to plumb in a washing machine by cutting into the the copper piping attaching a rubber hose with wire (instead of proper connector), causing thousands of pounds of damage in the shop below, and other work removing and damaging listed features and the structure of the building.

  3. Stella

    Regarding right of second succession to an assured tenancy

    Rent Act 1977 c42 Schedule 1
    Part I Statutory Tenants by Succession
    6(1) Where a person who—
    (a) was a member of the original tenant’s family immediately before that tenant’s death, and
    (b) was a member of the first successor’s family immediately before the first successor’s death,
    was residing in the dwelling-house with the first successor at the time of, and for the period of 2 years immediately before, the first successor’s death, that person or, if there is more than one such person, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be entitled to an assured tenancy of the dwelling-house by succession.

    Question
    Does (a) mean that the family member (in this case the grandson) needs to have been born before the original tenant (in this case the grandfather) died?

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