T dies; effect of death on Letting Agreement?

[jeffrey]

1. No. Now it's periodic, T can end it at a period month end. Best for het to give L one month's Notice.
2. No. She is sole T and therefore solely responsible for her own debts. He isn't.
3. T has to pay rent, not merely use up deposit.

[dg1]

Thank you for your quick reply.
Can you please confirm that although my nephew is the guarantor, he will not be liable for any outstanding rent in the event of her death? Or would he be liable for rent up until her death but not rent incurred once she has passed away if she is still within the notice period?

[jeffrey]

Thank you for your quick reply.
Can you please confirm that although my nephew is the guarantor, he will not be liable for any outstanding rent in the event of her death? Or would he be liable for rent up until her death but not rent incurred once she has passed away if she is still within the notice period?

Well, his liability is simply to guarantee whtever she owes. Does the guarantee provide for its determination in case of death? If not, he might also be liable after death- her lifetime debts are still owed by her Estate.

Liability (hers, and so his potentially) ceases on termination of the tenancy (except for pre-existing liability) if not sooner [e.g. on her death].

[ALD/northants]

AST tenant has died but his family remain resident

Our tenant who remained in the property after the end of the fixed term under an AST had died leaving several children in the property. His son (early 20s) has moved in. No rent is being paid. Has anyone come across this situation? Our letting agent is not able to advise. We need to serve notice. The Act seems to cater for this with ground 7 being a mandatory ground for possession but not sure whether we serve on occupiers or what? Any help would be gratefully received.

[jta]

I think you are able to claim against the estate of the deceased for any monies owed up till the time the tenancy ends, I'm not sure though. The son, moving in, sounds like he's squatting. How many other children are living there?

[ALD/northants]

It's all paid up to date up to death. He was a HA tenant. When the dad became a tenant he had four children so not sure if the eldest moved out and has then returned so could be 3 or 4 children - the youngest is about 13We now have rent arrears of about 5 weeks.

The elder son is not responding so we need to start possession proceedings but I can't figure out whether he has a tenancy as such (by default perhaps). We have been advised to serve a section 8 and 21 notice but it all doesn't fit very neatly into the usual scenario.

[jta]

Yes, difficult to respond properly without seeming heartless.
I presume there is no other adult than the 20yr. old. What about a word with social services, obviously you need to get the property sorted out.
Are you able to knock on the door and speak to the young man? You would then be able to explain the ins and outs of the situation to him, he's probably too young to realise what's needed. I doubt he would earn enough to pay the rent, with other kids to look after, that's if he's working. I don't know what the rules of HA are in a case like this. Could he claim, because he is now the guardian of his siblings?

[Lawcruncher]

As a matter of law, the tenancy passes to the personal representatives. If you do not know who the personal represntatives are, then you do not know if the tenancy is an AST or not. If the personal representatives are in occupation, it is an AST and you can serve a section 21 notice. If they are not, then you can serve a notice to quit. Perhaps you should do both, addressing the notices to the personal representatives of ABC deceased at the property. I think this is a case where you would be wise to get your solicitor involved.

EDIT: Forgot about succession - see next post

[Preston]

Hi

Your starting point is to work out whether or not there has been a succession - in other words, whether anyone is entitled to take over the tenancy from the deceased. The rules on succession for ASTs are the same as those for assured tenancies and are explained, briefly in the following leaflet:

http://www.communities.gov.uk/docume...pdf/138286.pdf

If there is no one who is entitled to succeeed, then the tenancy remains as part of the deceased's estate and is dealt with by an administrator or executor (both are forms of personal representative). You should ask if there is a will (as this will name the executor) or if not, whether anyone has or will be applying for "letters of administration" - in other words, to be appointed as the deceased's "administrator" or personal representative.

If there is no successor, no will (and so no executor) or no other personal administrator, then the tenancy technically vests in the crown and is administered by the President of the Family Division of the High Court.

So:

a) if there is a successor, treat them the same as the previous tenant. In other words, if you want possession, as it is now statutory periodic tenancy, serve a section 21 notice in the normal way

b) if there is no successor, then there is still a tenancy, but it will be an ordinary common law tenancy, which can be ended by a notice to quit. However, the NTQ must be served on the correct person, which means the executor, administrator or the President of the Family Division. (There is no harm serving on all or both if you are not sure)

c) once the notice to quit expires, the tenancy is at an end and anyone still in occupation is technically a trespasser. You would then need to apply for a possession order on what is known as the standard summary possession procedure if they do not move out.

d) any rent due up to the end of the tenancy is chargeable to the estate (and not to anyone who happens to be living in the property at the time - they are probably simply guests of the deceased or his estate).

Hope this is helpful.

Preston

[davidjohnbutton]

Incidentally, only those who are 18 or over can be a successor because only an 18 year old or more can hold title to land either as a tenant or owner.

So you don't count the children under 18 as having succession rights, and the 20 year old will not have succession rights as he has not lived there long enough.

You have two clear cut choices:-

1. Obtain possession of the property based on the decease of the tenant - there being no succession.

or

2. Regularise the tenancy as an AST with the 20 year old.

As to choice 1 - the law recognises the problems following decease of a tenant and you have one year in which to issue proceedings during which time you can continue to accept rent (but I would mark it as mesne profits) from whoever pays it without prejudicing your right to possession or crfeating a new tenancy by mere acceptance of money following the death.

[ALD/northants]

Thanks for your very helpful responses. I think I have concluded that there is no right to succession as I understand that succession only applies to a spouse or partner.

You mention that a notice to quit must be served if there is no successor. Is this different to a s21 notice of possession?

The right to repossess following a death without a succession is covered by ground 7 of the housing Act which is a mandatory ground for possession. This seems to indicate that a section 8 notice needs to be served. I couldn't work out quite who we should serve. I hadn't appreciated that the tenancy would pass to the PR's. I suspect that the financial state of the tenant was such that either no grant will be taken out (if there was a will) and that no letters of administration will be taken out if there wasn't.

As for offering the son a new AST - this was our original , albeit reluctant conclusion as we felt sorry for the family however we do have concerns about how the property will be maintained and now that no rent has been paid and the son appears to be making no efforts to sort we want to cut our losses

[mistymoo]

Hi, I used to work for social services and if you get in touch with them and tell them about the situation with the children and you are concerned for them. They will call around and possibly get everything sorted for you!
It does not seem like a good situation at all, for you as a landlord and the children left with a 20 ish year old.
Good luck but please do get in touch with them.

[Preston]

I think I have concluded that there is no right to succession as I understand that succession only applies to a spouse or partner.

You mention that a notice to quit must be served if there is no successor. Is this different to a s21 notice of possession?

Hi

From what you and others have said, I think the summary is:

a) there is no successor

b) you do not yet know if there is an administrator or an executor. As I understand it, if no one applies for probate in this way then the tenancy cannot pass under the will or the rules of intestacy to anyone else and so, in fact, vests in the crown and is dealt with by the President of the Family Division.

c) section 7 of schedule 2 of the Housing Act 1988 only applies where the tenancy has devolved to someone else under the will or the rules of intestacy. In such circumstances a section 8 notice could be used, quoting this ground.

d) in answer to your question, yes, a notice to quit is different from a section 21 notice. There is an explanatory note on this site and you will also find a good deal of information on the form and content of such a notice by googling the term. The key is that it must comply with both the common law and the Protection from Eviction Act 1977.

e) your objective is to get possession of the property

So, some suggested actions:

i) serve a valid notice to quit on the President of the family division (and, just in case circumstances change, on those whom you think are most likely to apply to be the personal representative(s) of the deceased). The former is a very matter of fact process. It goes without saying that you might wish to include an explanatory letter with any notice you serve on the personal representatives however.

If, by the time that the NTQ expires you have not been notified of the appointment of a personal representative or that the tenancy has passed to another party, apply for possession using the ordinary summary procedure.

In the meantime, make it clear that any rent payments are due from and accepted on behalf of the estate of the late tenant.

ii) if it becomes clear that the tenancy has devolved under a will or the rules of intestacy to another party, you are entitled to continue to demand rent from and receive rent from that person. In order to obtain possession from them, you should either:

• if they occupy the property as their only or principal home, serve them with a section 8 notice quoting ground 7, or,
• if they do not occupy the premises as their only or principal home, serve them with a valid notice to quit and once it has expired apply for possession under the summary procedure. There is no harm in serving both notices (NTQ and section 8) and "pleading in the alternative" if you are unsure about their occupancy status

Does this make sense to you?

Preston

[jeffrey]

You do not yet know if there is an administrator or an executor. As I understand it, if no one applies for probate in this way then the tenancy cannot pass under the will or the rules of intestacy to anyone else and so, in fact, vests in the crown and is dealt with by the President of the Family Division.

No. That used to be so. As from 1 July 1995, it vests in- and is dealt with by- the Public Trustee
[see s.9 of the Administration of Estates Act 1925, as substituted by s.14 of the Law of Property (Miscellaneous Provisions) Act 1994].

[sid1980]

I have a similar issue.

with me its the tenats boyfriend refusing to give the keys back. he wasnt on any agreement but has been living at the property for over 12 months.

the gov website indicates that the tenancy passes onto the boyfriend/partner
http://www.direct.gov.uk/en/Governme...ey/DG_10030994

so im going to issue an s21 on the boyfriend ...but i dont know his name

iv been advised to put something like the following on the s21

issued to " Miss XXX, deceased, and partner and current occupier (name unknown)"

is this correct and will it hold up in court?

advice appreciated.