H17. Succession Policy and Procedure. If you require this policy in a different format please ask a member of staff

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1 H17 Succession Policy and Procedure If you require this policy in a different format please ask a member of staff Approved: December 2010 Review date: December

2 Succession to Tenancy Policy Statement Elderpark Housing Association will ensure that succession to tenancy applications are processed in accordance with legal provisions and contractual terms contained within the tenancy agreement. The Association will also ensure the promotion of equal opportunities by publishing succession to tenancy information and documentation in different formats/languages as required. Succession to Tenancy: Legal Provisions Legal provisions exist that govern the right to succession of a Scottish secure tenancy. (Housing (Scotland) Act 2001, Section 22 and Schedule 3) When Succession Arises Succession can arise only on the death of the tenant and where there is a relevant qualifying person. Qualifying persons are defined below. Number of Successions The Act provides for two rounds of succession: On the death of Scottish secure tenant, the tenancy passes to a qualifying person On the death of a qualifying person who succeeded to the tenancy after the first death, the tenancy passes to another qualifying person Termination of Tenancy The tenancy ends on the death of a Scottish secure tenant either (a) when there is no qualifying person, or (b) each qualifying person declines the tenancy. For example, Mr Smith dies and his son is the only qualifying person. His son declines the tenancy. The tenancy is ended. The tenancy is also ended on the death of a qualified person who succeeded to the tenancy on the second occasion. For example, Mrs Jones succeeds to the tenancy on the death of her husband. Her son, William, succeeds on her death as a member of the family. On William s death, there is no further right of succession. 2

3 Joint Tenancies and Termination of Tenancy Where the second succession involves joint tenancies, for example in the case above, William Smith and his brother succeeding to the tenancy, the tenancy is not terminated when one of the tenants dies as long as the joint tenant continues to use the house as their only or principal home. Right to Remain in the Tenancy after Termination Where the tenancy is terminated as a result of the death of the second successor, any other qualifying person is legally entitled to remain as tenant in the house for 6 months. This tenancy is neither a Scottish secure tenancy nor a short Scottish secure tenancy. This provision enables the person concerned to find other suitable accommodation. Specific Rules Where a house has been designed or substantially adapted for occupation by a person whose particular needs require such accommodation, for example, a house designed for wheelchair users, a person will only qualify to succeed as follows: First Succession Right to succeed without such needs only applies where the qualifying person is a spouse, cohabitee or joint tenancy, or where members of family or carer has special needs requiring accommodation provided by the house. Second Succession All qualifying persons have to have special needs requiting accommodation provided by the house. Where the person does not require this accommodation but would otherwise have qualified to succeed the Association must make other suitable accommodation available to the person. Suitable accommodation is defined by the Act (Housing (Scotland) Act 2001, Schedule 1, part 2). (See Appendix 1) Where the Association has recovered possession of the property as a result of court action and tenants have been required to move to other suitable accommodation, (Housing (Scotland) Act 2001, Schedule 2, Part 1, grounds 8-14), both tenancies are to be treated as a single tenancy for the purposes of succession. This prevents succession rights beginning afresh from the new tenancy. 3

4 Qualifying Person For each separate round of succession, there can be three levels of priority of qualifying person. These are now clarified in turn. Qualifying Person: First Priority First priority is given to the tenant s spouse, cohabitee of the same or different sexes, or the surviving joint tenant. In the case of the spouse, or joint tenant, the house must have been the person s only or principal home at the time of the tenant s death. The spouse or joint tenant will be requested to produce evidence that they have been staying in the house as their only or principal home. A list of acceptable documentary evidence is provided below. The Housing Officer should ensure that evidence is gathered as effortlessly as possible to minimise potential stress, for example, using existing tenancy file information as much as possible. In the case of cohabitees only, it is also a requirement that the house must have been the person s only or principal home for a full 6 month period preceding the tenant s death. The cohabitee will be required to produce evidence as below. Check - passport, benefits payments, etc. Qualifying Person: Second Priority If no one qualifies or chooses to succeed from the first priority group, then a member of the tenant s family aged at least 16 will succeed where the house was the person s only or principal home at the date of the tenant s death. The member(s) of family will be requested to produce evidence that they have been staying in the house as their only or principal home. Although principal home is not defined in the Act, a house will be considered to be a person s principal home where they have a substantial connection to it. Further, even where someone is temporarily absent from the property, a house will be deemed to be the principal home if a person intends to return and can display some sign of that intention, for example, the presence of belongings or someone else staying there on the person s behalf. (Roxburgh D.C. c Collins 1991 S.C.L.R. 575; Amoah v Barking and Dagenham LBC, unreported 23 January A list of acceptable documentary evidence is provided below. The Housing Officer should ensure that evidence is gathered as effortlessly as possible to minimise potential stress, for example, using existing tenancy file information as much as possible. A member of family is defined by the legislation (Housing (Scotland) Act 2001, Section 108). The list of possible family members is long and includes the following: Spouse or cohabitee (of either sex) Grandparent Children and grandchildren (including stepchildren) Sister and brother Aunt and uncle Niece and nephew 4

5 Qualifying Person: Third Priority If no one qualifies or chooses to succeed from either of the above groups, then a carer may succeed. The carer will be requested to produce evidence that they have been staying in the house as their only or principal home. A list of acceptable documentary evidence is provided below. The Housing Officer should ensure that evidence is gathered as effortlessly as possible to minimise potential stress, for example, using existing tenancy file information as much as possible. A carer can succeed provided the following conditions are met: The carer is at least 16 The house was the carer s only or principal home at the time of the tenant s death, and The carer has given up her/his only or principal home to care for the tenant, or a member of the tenant s household, for example, a child with learning difficulties. It is emphasised that there is no definition of carer within the Act. This is intentional to cover a broad range of caring arrangements, including both formal and informal arrangements. The key test for the Association is not the level of care provided, but whether or not the individual has given up their only or principal home to care. This legal provision is aimed at protecting individuals who give up their homes to care either for a tenant or a member of the tenant s family from becoming homeless. Succession to Tenancy: Procedures Spouse and Joint Tenants When a Scottish secure tenant dies, the spouse or joint tenant will succeed automatically to the tenancy provided it is their only or principal home at the date of the tenant s death. See below for clarification of principal home and dealing with possible disputes. The standard application form should be completed by the relevant successor(s) (Document 1). The succession should be acknowledged by issue of the notification letter (Document 2) and a copy of the tenancy agreement should be given to the successor in the case of non-tenant spouses. The Housing Officer should explain the tenant s rights and obligations fully as per tenancy agreement signing procedures. This should include information concerning the tenancy such as the right to buy and its implications for tenants, the Association s complaints system and other information generally provided to tenants. Rent is payable by the successor from the date of succession. In succession cases where the sole tenant dies, the debt does not pass onto the new tenant. We should therefore write off the debt as irrecoverable and credit the rent account. The successor should be asked who the Executor of the deceased s estate is and a claim 5

6 for the rent arrears due should be lodged with the estate. In the case of a joint tenancy becoming a sole tenancy, the sole tenant remains responsible for the debt and all tenancy breaches. We should also record on the rent diary the date of succession. Cohabitees Cohabitees of either sex will qualify to succeed where they satisfy the 6 month residence requirement. The standard application form (Document 1) incorporates a specific statement confirming that the 6 month residence requirement has been satisfied. Cohabitees will be required to produce evidence that they have been staying at the address as their principal home. Examples of acceptable documentary evidence are as follows: Written confirmation on tenant file Employer letter Official correspondence such as DSS letter Letter from medical establishment Other agency contact Council tax letter Housing benefit correspondence The succession should be acknowledged by issue of the notification letter (Document 2) and cohabitees should be given a copy of the tenancy agreement. The Housing Officer should explain the tenant s rights and obligations fully as per tenancy agreement signing procedures. This should include information concerning the tenancy such as: The right to buy, for example, discount entitlement and the implications of exercising this right for tenant The Association s complaints system Information on policies and key strategies such as tenant participation Member of Tenant s Family Members of the tenant s family qualify to succeed where they are 16 or over and occupy the house as their principal home. Members of the family will be required to produce evidence that they have been staying at the address as their principal home. Examples of acceptable documentary evidence are as follows: Written confirmation on tenant file Employer letter Official correspondence such as DSS letter Letter from medical establishment Other agency contact Council tax letter Housing benefit correspondence 6

7 The succession should be acknowledged by issue of the notification letter (Document 2) and members of the family should be given a copy of the tenancy agreement. The Housing Officer should explain the tenant s rights and obligations fully as per tenancy agreement signing procedures. This should include information concerning the tenancy such as: The right to buy, for example, discount entitlement and the implications of exercising this right for tenant The Association s complaints system Information on policies and key strategies such as tenant participation Carers Carers qualify to succeed where they are 16 or over, occupy the house as their principal home and have given up their own home to care. Carers will be required to produce evidence that they have been staying at the address as their principal home. Examples of acceptable documentary evidence are as follows: Written confirmation on tenant file Employer letter Official correspondence such as DSS letter Letter from medical establishment Other agency contact Council tax letter Housing benefit correspondence The succession should be acknowledged by issue of the notification letter (Document 2) and carers should be given a copy of the tenancy agreement. The Housing Officer should explain the tenant s rights and obligations fully as per tenancy agreement signing procedures. This should include information concerning the tenancy such as: The right to buy, for example, discount entitlement and the implications of exercising this right for tenant The Association s complaints system Information on policies and key strategies such as tenant participation Notification of Right to Succeed Where any of the qualifying persons under the first priority category decline the tenancy, the Association must investigate within 7 working days whether there are any other persons who may qualify to succeed. The Association must use its best endeavours to ascertain whether other qualifying persons exist (see below for clarification of best endeavours). Prior to doing so, however, staff should first check to ensure that there are no qualifying persons under the first category, for example, a spouse fleeing domestic violence. Housing Officers should next check whether there are any family members who qualify to succeed. Where such persons are found, the Association must serve notice, in writing, to each person (Document 3). Should members of the family in turn decline the tenancy, the Association must then 7

8 investigate whether there are any carers who may be entitled to the tenancy. Again, the Association must use its best endeavours and written notice must be served on any carer who may be entitled to succeed (Document 4). Best Endeavours to Establish if Other Qualifying Occupiers Exist In ascertaining whether other persons may be entitled to succeed, the Housing Officer should examine/contact the following sources: Assessing tenancy records Contacting other agencies or departments as appropriate Contacting other relatives not resident with the tenant Contacting other sources as required, for example, educational bodies Placing a newspaper advertisement Joint or Sole Tenancy Where there is more than one qualifying person entitled to succeed to the tenancy, they are entitled to decide whether or not the tenancy should be a sole tenancy or held jointly. For example, where there are two members of the family aged 16 or over occupying the house as their principal home, then it is open to them to decide who should succeed, whether as a sole of joint tenancy. In order to facilitate this decision, though, the Housing Officer should offer advice regarding the advantages and disadvantages of holding a sole or joint tenancy in their particular case. The information is contained in the Joint Tenancy procedures advice sheet. The Association will decide who should succeed where the qualifying occupiers cannot decide within 28 days of the tenant s death. The Housing Officer should base this decision on the Association s standard policy (Appendix 2). Where Qualifying Occupier Does Not Respond to Letter Regarding Succession Where Document 3 or 4 has been sent to a qualified person but there has been no response within 28 days of the tenant s death, the Housing Officer should follow this up by sending Document 5 advising that the locks will be changed 7 days from the date on the letter. The tenancy is then terminated. Declining a Tenancy A qualified person may decline the tenancy by giving the Association notice, in writing, within 28 days of the tenant s death (Document 6). In cases where the landlord has served notice on persons who may be entitled to succeed, the 28 day period begins from the date the notice was given. A qualified person who declines the tenancy must vacate the house within 3 months of giving notice to the landlord. As the notice is to be treated as having effect from the tenant s death, this means in effect that the person must leave the house within 3 months of the tenant s death. 8

9 The qualifying successor who declines the tenancy is liable to pay rent for the period spent in occupation after the tenant s death (Document 7). Principal Home The issue concerning whether or not a house is a person s principal home is a question of fact and each case requires to be assessed on its merits. Types of factors to take into account are as follows: Information about another tenancy. For example, as provided by other landlords Information from official sources such as employer or medical records Information from other agencies/departments such as Social Work or Social Security Information from neighbours, relatives, etc. It is emphasised that disclosure of information should conform with the requirements of the Data Protection Act Refusals of Claims and Disputes The Housing Officer should send the refusal letter when it appears that the person qualifying to succeed does not, in fact, so qualify (document 8). Appendix 3 details procedures when applicants refuse to leave. The Association has established an internal appeals system to enable applicants aggrieved by a decision to lodge an appeal before members (for discussion regarding who to be on group/where convened etc). This is explained in Document 9. Alternatively, the landlord or tenant may raise an action in the court, for example, seeking an order of declaratory in the sheriff court to declare the rights of both parties (for discussion and possible omission). Good Practice Where the successor succeeds to a tenancy that may be too large in terms of the Association s policy, this is not to be taken into account in the succession decision. Size of house is not relevant to the issue of succession. It is deemed to be good practice, however, for the Association to make best use of its stock, for example, to reduce under occupation to meet the housing needs of households living in overcrowded situations. In those cases where housing is under occupied when succession occurs, therefore, the Housing Officer should offer the successor the option (if feasible) of transferring to other property should this be preferred. In the case of two qualifying persons, this could involve two separate tenancies being allocated. Other inducements that the Housing Officer might offer are: Payment of removal expenses Rent free period of 2 weeks in the new property Decoration allowance 9

10 Tenancy Agreement Get the successor to sign an addendum to the original missive agreeing to the succession/assignation and to the terms of the original missive. The successor is then given a copy of the original missive with the addendum attached. Inspection of the House In the case of a succession where a joint tenancy becomes a sole tenancy, the sole tenant remains responsible for any existing damage to the property. Where the successor is not a joint tenant they are not held responsible any damage caused by the previous tenant. The housing Officer should therefore inspect the property prior to the date of succession. Preserved Right to Buy/Right to Fair Rent The preserved right to buy/right to fair rent will end unless the tenancy is succeeded by a level 1 successor (spouse/partner/civil partner/joint tenant) Monitoring In order to comply with its service commitments it is important that the Association should monitor the effects of succession procedures. Areas to be monitored are the numbers of disputes and outcomes. Review This Policy will be reviewed every three years, the next review being due in December An interim review may take place in the event of changes to good practice, regulatory or legal requirements 10

11 Document 1: Succession to Tenancy Standard Application Form 1 Name of person applying to succeed 2 Property Details a. Type of house b. Size of house 3 Property Address: 4 Relationship of former tenant a. Spouse b. Cohabitee c. Joint Tenant d. Member of Family of Birth e. Carer of Birth 5 How long resident in house (enter period and date if known)... 6 Details of other people living in the house (to identify if more than one qualifying occupier) Name of Birth Relationship to Applicant 7 Evidence supplied to confirm house is the principal home (two sources of evidence should be obtained and copies taken with applicant s consent) Correspondence on house file Employer letter Other official correspondence (DSS letter) Letter from medical establishment Other agency contact Council tax letter Housing benefit correspondence Other 8 In the case of carers, has applicant given up their principal home to care. If no, refuse If yes, obtain written evidence Applicant signature Applicant signature Housing Officer signature 11

12 Staff Checklist 1 Is applicant a qualifying person Yes No If yes, specify which category If no, refuse with reasons If yes, specify under which category. 2 Does applicant fulfil the principal home criterion Yes No If no, refuse If yes, what evidence has been supplied by the applicant (attach copies of evidence).. 3 Has property been specially adapted? Yes No If yes, check is qualifying person requires such accommodation (refer to procedure guidance on specially adapted property). 4 Is there more than one qualifying person? Yes No If yes, have they agreed who should succeed? Yes No If yes, provide written confirmation from the persons concerned. If no, landlord to decide. Use this space to confirm who has succeeded to the tenancy and reasons why this person has been chosen using Appendix If application is refused, has applicant been advised of appeal rights? Yes No If no, explain reasons why.. Managers Signature 12

13 Document 2: Confirmation of Succession to Tenancy Address Dear (Tenant s Name) Re: Succession to Tenancy at (Property Address) Further to your application to succeed to the tenancy at (property address), I am pleased to advise you that your application has been successful. The succession starts on (date of tenant s death), with rent due from this date. Rent payable is Kindly contact me to arrange a meeting to discuss tenancy rights and obligations. Should you wish to decline the tenancy, kindly complete and return the attached form as soon as possible but within 28 days. (Document 6) Yours sincerely Housing Officer 13

14 Document 3: Notice to Potential Qualifying Person(s) (Family Members) Address Dear (Tenant s Name) Re: Notice of Succession at (property address) Further to inquiries, it has been brought to my attention that you may be entitled to the tenancy at (property address). This will apply if you satisfy any of the following conditions: the house was your only or principal home at the date of the tenant s death you are currently aged 16 or over Kindly contact me to arrange a meeting to discuss details as soon as possible and no later than (insert date) by calling I enclose a refusal letter (Document 6) should you wish to decline the tenancy. I look forward to meeting you. Yours sincerely Housing Officer 14

15 Document 4: Notice to Potential Qualifying Person(s) (Carers) Address Dear (Tenant s Name) Re: Notice of Succession at (Property Address) Further to inquiries, it has been brought to my attention that you may be entitled to the tenancy at (property address). This will apply if you satisfy any of the following conditions: The house was your only or principal home at the date of the tenant s death You are currently aged 16 or over You gave up your principal home to care for the tenant or a member of the tenant s family Kindly contact me to arrange a meeting to discuss details as soon as possible and no later than (insert date) by calling.. I enclose a refusal letter (Document 6) should you wish to decline the tenancy. Yours sincerely Housing Officer 15

16 Document 5: Notice of Lock Change to Potential Qualifying Person(s) (Carers) Where There Has Been No Response Address Dear (Tenant s Name) Re: Notice of Succession at (Property Address) I note that you have failed to respond to our correspondence regarding succession of the above tenancy. The Association will therefore change the locks on (). If you still wish to succeed the tenancy it is essential that you contact us before 5pm on (7 days from date of letter) Yours sincerely Housing Officer 16

17 Document 6: Declining Succession by a Qualifying Person (Issued with Document 2) To: The Housing Officer From: Name of Qualifying Person Re: Notification of Intention to Decline the Succession to Tenancy at (property address) Further to your letter confirming my right to succeed to the tenancy at (property address), I write to confirm that I wish to decline this tenancy. I understand that you will contact me in the near future to discuss handover of keys and payment of any rent due. Signature of Qualifying Person 17

18 Document 7: Notification to Leave and Rent Liability for Period of Occupation Address Dear (Tenant s Name) Re: Rental Payment in respect of (property address) I thank you for your letter indicating your intention to decline the tenancy at (property address). Please note that you are liable to pay any rent due from the date (name of former tenant) passed away. You are entitled to stay in the property until.(insert date 3 months from the date the tenant died). Kindly contact me as soon as possible on.(housing Officer number) to make suitable arrangements. I look forward to meeting you. Yours sincerely Housing Officer 18

19 Document 8: Refusal of Application to Succeed Address Dear (Name of Tenant) Re: application to succeed to Tenancy at (property address) Further to your recent application to succeed to the tenancy at (property address), I write to advise you that you are not entitled to succeed to the tenancy for the following reason(s): (Insert appropriate reason) 1 You are not a qualifying occupier under the Housing (Scotland) Act 2001 that lays down who may succeed to the tenancy 2 You are the tenant s spouse but were not occupying the house as your principal home at the time the tenant passed away 3 You are the joint tenant but were not occupying the house as your principal home at the time the tenant passed away 4 You are not a member of the tenant s family 5 You are a member of the tenant s family but are not aged 16 or over 6 You are a member of the tenant s family aged 16 or over but were not occupying the house as your principal home at the time the tenant passed away 7 You are not a carer 8 You are a carer but are not aged 16 or over 9 You are a carer aged 16 or over but were not occupying the house as your only principal home at the time the tenant passed away 10 You are a carer aged 16 and over but did not give up your previous only or principal home to care. 19

20 Document 9: Appeals Information Sheet The Association has established an internal appeals process. As part of this process, applicants can have their case heard before a panel of people not involved with the original decision. In situations where it has been decided by the Association that a person does not qualify to succeed and does not intend to appeal the decision, the person should be requested in writing to leave the property. Where this person refuses to leave, the Housing Officer must contact the Association s solicitor to discuss details and take the appropriate action. Staff should note that it is, in general, unlawful to recover possession against nontenant residential occupiers without due process of law except for those without right or title to occupy such as squatters, or the specific exemptions contained in the Rent (Scotland) Act 1984, Section 23A, such as people sharing accommodation with a resident landlord. Even in these situations though, staff must liaise with the Association s solicitor to agree a course of action to ensure that the house is repossessed lawfully. 20

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