5 Succession Rights

11.38 Section 4 of the 1976 Act provides for one succession to a protected occupancy. Succession rights accrue in either of two situations:

(i)if the original occupier died leaving a spouse who was residing with him at his death, then if the latter is not a protected occupier in his own right, he becomes the statutory tenant if and so long as he occupies the dwelling as his residence.

(ii)if the occupier had no spouse living with him in the dwelling at his death, then an assured tenancy by succession is conferred on any member of his family who was residing with him in the dwelling house at the time of, and for the two years immediately preceding, his death. The requirement of residence in the dwelling house itself, rather than simply with the deceased occupier, was added by the 1988 Act.⁹⁰ The latter also extended the qualifying period of residence from six months to two years. If more than one family member fulfils this requirement, the assured tenant shall be, in default of agreement, such one as the court directs. The broad effect of the changes introduced by the Housing Act 1988 was to confer greater security of tenure on spouses who succeed to the tenancy than upon other family members.

11.39 The position of homosexual or lesbian cohabitees remained uncertain following the Housing Act 1988. In Sterling Housing Association v Fitzpatrick⁹¹ the House of Lords held that same sex partners could not be construed as ‘living together as husband and wife’ and that, consequently, a same sex partner could not succeed to the tenancy of a deceased partner in the capacity of spouse. It was also there held, however, that a same sex partner could succeed as a member of the deceased tenant’s wider family, provided a stable and established relationship of a familial nature can be established on the facts. This was clearly discriminatory, however, as the same-sex partner’s entitlement was only to an assured tenancy by succession rather than (as was the case for a spouse) a statutory Rent Act tenancy with full security of tenure and rent control. In Ghaidan v Godin-Mendoza⁹² the House of Lords subsequently held that the statutory provisions must be interpreted under the Human Rights Act 1998⁹³ in a manner that rendered them compliant with the European Convention of Human Rights and Fundamental Freedoms.⁹⁴ They were therefore to be interpreted in a gender-neutral way so that a partner living with the deceased tenant ‘as his or her husband or wife’ would include a de facto partner irrespective of whether that relationship was same-sex or heterosexual. As noted above, if the parties have contracted a civil partnership, the surviving partner is, in any event, in the same legal position as the tenant’s spouse, and is entitled to succeed to the tenancy as such.

11.40 It should be noted that the Housing Act 1988 provides that in the case of deaths occurring after its commencement, family members other than spouses shall occupy by virtue of an assured tenancy by succession,⁹⁵ cf the statutory tenancy by succession enjoyed by widows or widowers, and previously enjoyed by other family members.