27 If a tenant dies, does his family have to leave?
Not necessarily. The tenancy. agreement between landlord and tenant may provide for succession to the tenancy on the death of a tenant.
If there is nothing about this in the tenancy agreement, members of the family may still have a right to remain in the home. Much will depend on the circumstances of each tenancy and on such matters as when the tenant died (particularly on-whether it was before or after 2 January 1989); whether the tenant. was the original tenant of the house or someone who had succeeded to the tenancy. and what relationship the prospective successor has to the tenant who has died. These matters are also important in deciding if the succession is to a regulated tenancy or to an assured tenancy.
THE FOLLOWING QUESTIONS IN THIS SECTION EXPLAIN THE RULES OF SUCCESSION WHERE A TENANT HAS DIED SINCE 2'JANUARY 1989. DIFFERENT RULES APPLY WHERE A TENANT DIED BEFORE THAT DATE. THE RULES ON SUCCESSION ARE COMPLEX AND ANYONE UNSURE OF HIS OR HER RIGHTS SHOULD SEEK ADVICE AS SOON AS POSSIBLE.
28 Who can qualify as a successor?
The husband or wife of the tenant. who has died will usually qualify as a successor (but see Question 31). Another member of the family may qualify in certain circumstances. Much depends on whether the tenant who has died succeeded to the tenancy, and on the relationship between the tenant and the possible successor.
29 When does a husband or wife have a right to succession?
A husband or wife will always have a right to succeed unless the tenant who died had himself succeeded to the tenancy. In that case, the husband or wife has no right of succession unless the tenancy agreement provides for one or in the very special case where the husband or wife is a member of the family not only of the first successor but also of the original tenant.
30 What kind of tenancy is a husband or wife entitled to if they have succeeded to it?
A husband or wife who succeeds to a tenancy on the death of their spouse is entitled to a statutory regulated tenancy.
31 Is someone living with a tenant as if they are wife and husband regarded as a spouse?
Yes. If more than one person can qualify in these circumstances the one who has occupancy rights under the Matrimonial Homes (Family Protection) (Scotland) Act 1981 will be regarded as the spouse. If there are no such rights the sheriff can be called on to decide.
32 When does another member of the tenant's family have a right of succession?
If the following conditions are met, the tenancy will pass to another member of the tenant's family.
EITHER
1 The tenant who died was an "original tenant" - that is he did not himself become the tenant by succession; and
2 there is no husband or wife to succeed to the tenancy; and
3 the member of the tenants family concerned was living with the tenant in the house at the time of the tenant's death and had done so continuously for at least 2 years immediately before that. (if the member of the family lived with the tenant continuously from 2 July 1988 until the tenant's death, and was living with him at that time he will still have a right to succeed to the tenancy even if the period was less that 2 years.)
OR
1 The tenant who died was a "first successor" - that is he had himself become the statutory regulated tenant by succession following the death of an original tenant; and
2 the member of the family concerned is a member of both the original tenants family, and of the first successor's family; and
3 he was living with the first successor in the house at the time of his death and had done so continuously for at least the 2 years immediately before that. (if he lived with the first successor continuously from 2 July 1988 until the first successor's death and was living with him at that time, he will still have a right to succeed to the tenancy even if the period was less than 2 years.)
33 What kind of tenancy is a member of a tenant's family other than a wife or husband entitled to if they have succeeded to it?
A statutory assured tenancy.
34 Are there any other circumstances in which someone has a right to succeed to a tenancy?
Only if the landlord and tenant have agreed to it in the 'tenancy agreement.
35 If more than one person can- qualify to succeed to a tenancy, who succeeds? .
If the people concerned cannot reach agreement between themselves, the sheriff can be called upon to decide.
36 If a tenant leaves the house to live elsewhere does the spouse have to give up possession of the house?
Not necessarily. The spouse may have a right to remain in the house. In these circumstances legal advice should be sought.