The only things in life which are certain are death and taxes. They both also cause a great deal of uncertainty in life. We are often asked, what happens to a Scottish secure tenancy when a tenant dies?
What happens to the tenancy?
If there is a joint tenant the tenancy will continue as a sole tenancy in the name of the surviving joint tenant. If there is no joint tenant you will need to consider whether the tenancy passes to a successor. Succession operates as matter of law if there is a person who is a 'qualifying successor'. Qualifying successors are ranked in three levels of priority:
- Spouse, civil partner or 'live in' partner of the tenant
- Family member of the tenant (child/ grandchild/ parent/ grandparent/ brother/ sister/ aunt/ uncle/ nephew/ niece)
- Carer of the tenant
Each successor must be able to show they occupied the house as their 'only or principal home' at the date of the tenant's death. A 'carer' must show they gave up another house to move into the deceased's home to provide care for them. At todays date, only the 'live-in partner' needs to have lived in the house for any period prior to the tenant's death. Changes are planned which will also introduce a twelve month qualifying residence period for family member's and carers.
What if there are rent arrears?
In the case of joint tenants they may be 'jointly and severally' liable for payment of rent, which means that both tenants are individually responsible for the whole sum due. If a joint tenant passes away while there are rent arrears, the whole debt is still payable - whether by the remaining tenant or the deceased tenant's estate. The surviving tenant can be pursued as an individual for the whole outstanding amount. If the tenancy passes by succession the arrears do not pass to the successor. However, the arrears can be claimed against any estate of the deceased tenant. In practical terms it is most likely the arrears will require to be written off.
Items left in the house
Assuming there is no joint tenant or successor, you will want to recover possession of the house. Any items left in the house become assets of the deceased tenant's estate. You will need to liaise with their executor, preferably in writing, regarding your intentions. Additionally, you should allow reasonable time for the belongings to be removed and make it clear what you intend to do if they are not removed. There are statutory provisions to deal with items which appear to be lost or abandoned.
You can contact our team for advice on the recovery of arrears disposal of any assets arising from a tenant's death and any other housing management queries.
