13 Direction for succession tenancy: effects
8.60 If the applicant is found to be both eligible and suitable, and the tribunal refuse consent to the landlord’s notice to quit (if any), then they must give a direction entitling the applicant to a tenancy of the holding.117
(a)Commencement of succession tenancy
8.61 The tribunal direction entitles the applicant to a tenancy on the same terms as those on which it was let at the date of the former tenant’s death.118 The new tenancy is deemed to take effect either:
(a)Where no notice to quit was given on the tenant’s death, at the end of the twelve months immediately following the end of the year of tenancy in which the tenant died,
(b)Where a Case G notice to quit was given, at the date on which that notice expired, or
(c)If the deceased held under a fixed term tenancy with more than 27 months to run succession will be under the normal rules of inheritance.
No application for succession can be made.1198.62 Where the tribunal makes a direction for a new tenancy, but does so within the three months prior to the termination of the old tenancy, then it has limited power to extend the old tenancy on the tenant’s application. The tribunal can specify a new termination date for the old tenancy falling within three months immediately following the original termination date. If the tribunal direction is itself made after the original termination date, then a new date can be substituted provided it is within three months of the direction.120 The new tenancy is deemed to include a covenant against assignment.121
(b)Succession to part of holding
8.63 If the applicant agrees, the tribunal can award a tenancy or joint tenancy of part only of the deceased’s holding.122 In this event the tribunal must give their consent to the operation of the landlord’s notice to quit (if one has been given) in relation to that part of the holding that is excluded from the tribunal direction.123 The landlord does not, in this event, have to make out one of the grounds for consent.
(c)Sub tenancies: protective provisions
8.64 Subtenants enjoy no statutory security of tenure. A problem arises if the landlord introduces a supervening mesne tenancy after the grant of the deceased’s interest. In this event the grant of a new tenancy by way of succession could turn the successor/tenant into a subtenant, his interest antedating that of the mesne lessee. The effect would be to destroy any security of tenure otherwise attaching to his interest.
8.65 To obviate this problem the 1984 Act introduced provisions (now contained in s 45(2) and (3) of the 1986 Act) whereby if the deceased’s tenancy was not derived from the interest held by the immediate landlord of the successor at the relevant time, the succession tenancy is deemed to be granted by the person entitled to the immediate interest from which the deceased tenant’s interest was originally derived (instead of by his immediate landlord, ie the mesne tenant). The supervening interest, in other words, is ignored, and the successor is deemed to be the tenant of the original landlord.
8.66 The deeming provision is triggered by the introduction of a ‘supervening interest’ subsequent to grant. This is widely defined in s 45(3) to mean ‘any interest in the land comprised in the deceased’s tenancy, being an interest created subsequently to that tenancy and derived (whether immediately or otherwise) from the interest from which that tenancy was derived and still subsisting at the relevant time’ (italics added). There is a question whether the deeming provision would apply if a series of tenancies and sub tenancies exists ab initio, and the landlord subsequently interposes a head lease between himself and his mesne tenant. Semble such an interest would not be an interest derived from that from which the deceased’s tenant’s interest was derived.
(d)Death of applicant
8.67 The death of an applicant after securing a succession direction, but before it takes effect, is dealt with by the Agriculture (Miscellaneous Provisions) Act 1976 (Application of Provisions) Regulations 1977.124 If a person entitled to a joint tenancy dies, the direction takes effect as if made to the other applicant only.125 In other cases, the succession scheme takes effect, with modifications as if the entitled successor were a deceased tenant.126