Right of succession for common law wife of council tenant

Kathymel

I have asked to advocate for a woman of my acquaintance who has been told she must leave the council house she has lived in for eight years. I want to be sure of my facts before I contact the council.

The woman's common law husband was the leaseholder but he has recently moved into a nursing home.

The Housing Act states that a common law spouse has a right of succession to the tenancy on the death of their partner if they have lived at the property for a minimum of one year. However, I cannot find anything that states that this applies should the spouse be forced to move into alternative accommodation.

It seems logical that this should be the case, but I wanted to make sure.

If anyone could confirm this and point me at something I can cite at the council, I would be most grateful.

Thank you.

Browntoa

Who is a qualifying person?

The law states who can take over a tenancy after a tenant dies. A person who has the right to take over the tenancy is called a ‘qualifying person’.
You can only take over the tenancy after the tenant’s death in the following circumstances.
If you had a joint tenancy with the person who has died
If you are a joint tenant, you have the right to take over the tenancy and stay in your home. You will be responsible for any overdue rent on the property.
If you are a member of the tenant’s family
If you are the tenant’s husband or wife, partner or civil partner (someone who has entered into a formal arrangement, known as a ‘civil partnership’, to give a same-sex couple the same legal status as a married couple) or other family member of the person who has died, and the house was your main home, you may have the right to take over the tenancy. If you were the tenant’s partner (that is, you lived with the tenant as if you were their husband, wife or civil partner), the home must have been your only or main home for at least six months

http://www.moray.gov.uk/moray_standard/page_49381.html

agrinnall

There's no such thing as a common law marriage, a man and a woman living together in a relationship are either married or cohabiting - from what you say, this is cohabitation. It also sounds like the lady was not a joint tenant, in which case she has few rights and the council can probably ask her to leave. She needs proper legal advice rather than help from a well-meaning but not knowledgeable friend I'm afraid. I'd suggest an appointment with CAB to start with.

http://www.adviceguide.org.uk/england/relationships_e/relationships_living_together_marriage_and_civil_partnership_e/living_together_and_marriage_legal_differences.htm#h_housing

Edited to add that browntoa's link may apply but it relates to Scottish law, which may not be relevant in this case.

Kathymel

All the council websites I have looked at state that a common law spouse has the same rights as a married spouse, as long as the person has lived at the property for a minimum of one year.

What is not clear is what happens if the spouse who holds the lease moves into care, rather than dies.

anamenottaken

Kathymel wrote: »

All the council websites I have looked at state that a common law spouse has the same rights as a married spouse, as long as the person has lived at the property for a minimum of one year.

What is not clear is what happens if the spouse who holds the lease moves into care, rather than dies.

Can you provide a link to a council website which does this, please.

When I search my local authority site for the term "common law spouse" it provides links to pages about local commons. As there is no such thing as a common law spouse, I'm surprised that a council would use the term.

Kathymel

https://www.portsmouth.gov.uk/ext/housing-and-council-tax/housing/advice-on-managing-your-council-tenancy,-rent-and-eviction.aspx

• Succession to tenancy - your spouse or civil partner has an automatic right to succeed to the tenancy should you, as sole tenant, die. A common law partner can also succeed if they've lived in the property for a year or more before your death. Other family members may have a right to succeed. If the person who takes over your tenancy then dies, no one living with them will have an automatic right to take over the tenancy in the same way.

http://www.google.co.uk/url?sa=t&rct=j&q=&esrc=s&source=web&cd=3&ved=0CC4QFjAC&url=http%3A%2F%2Fwww.hinckley-bosworth.gov.uk%2Fdownload%2Fdownloads%2Fid%2F4287%2Fcouncil_tenancy_succession_policy&ei=uasMVMX5O6ay7AaE8IDYCg&usg=AFQjCNHap_xc1RsU_HPcz_34zTgpUpK_WQ&bvm=bv.74649129,d.ZGU

The tenants common law partner, parent, child, grandparent, grandchild, brother

http://www.bgrmo.org.uk/service-standards/your-rights-council-tenants

the tenancy will continue in the name of the surviving husband, wife or common-law partner, so long as the property was his or her main home at the time of death

BigAunty

Contact Shelter to ask for clarification. Another option to contest the eviction is to bring it to the attention of the local MP - they are there to serve.

Succession, AFAIK, is solely about the death of the tenant and the info that you cite refers specifically to this.

So if you can't back up your argument through law, the next step would be to try to appeal to the better nature of the social housing landlord who may have discretion in awarding the tenancy to an occupant who has lived there with the tenant.

For example, a succession can only happen once I believe, so when there is a sole tenancy who dies, their partner will inherit it. When the partner dies, their adult children who live in the property often usually expect to succeed in the tenancy and are quite shocked when the social housing landlord tells them this isn't the case. I've seen newspaper articles and posts on the benefit board where adult children (or other occupants) living in the property who cannot succeed have tried to apply pressure on the social housing landlord to change their mind and perhaps this type of PR or pressure from an MP may work?

Is the property under occupied or is a 1 bed property, for example?

Kathymel

Thanks, Big Aunty,

The Shelter helpline is a great idea.

I'm hoping there is a legal precedent but, if that eludes, it will be the MP route, followed by the story-in-the-papers route and the petition route if that doesn't work.

The previous times I have fought evictions I have gone straight for the MP/story/petition and they have gone very well. In those cases, the breaches of contract were rather more wooly than this one, which seems, on first impression to be much more clear-cut. If only it was stated somewhere that death is not an absolute prerequisite for succession.

xylophone

common law partner,

I am rather surprised that a council web site should use this term.

http://www.resolution.org.uk/advice/livingtogether/

"The myth of common law marriage and the fact that many official bodies refer to people “living together as husband or wife” means that many people who live together are not aware that they have no rights when their relationships end."



http://www.lawsociety.org.uk/for-the-public/common-legal-issues/moving-in-together/

"Common law marriage does not exist."

lighting_up_the_chalice

I think your main issue will be that this is not a succession, as the partner hasn't died. At best it will be an "assignment", which is a whole different kettle of fish.

The issue of under-occupancy may well also be a stumbling block as assignment can be separate from the individual property.

I'm afraid the other elephant in the room is that in order to qualify for the housing related benefits charged at the nursing home, he may have surrendered his tenancy already. Even if they were joint tenants, a surrender by either party effectively ends the tenancy for both.

Kathymel

Thanks, Chalice.

That is the main issue, yes, but I can't find any information to clarify what happens in cases like this. I feel certain that a legally married spouse would not be forced to move from a council house should their partner move into a nursing home (if the partner was the sole leaseholder). If the year's occupancy has been observed, this should apply to a non married partner equally.

In the case of succession, a council can move a successor into smaller accommodation only if they are not a spouse/partner.

If your last point is the case, I think appealing to their 'better' nature is the best way forward.

To add a bit of background, the woman is two months shy of 80, becoming frail and had previously been married to the man for 40 years. She lived in a different house on the same street for 40 years with him, a house now occupied by one of her granddaughters. Her daughter and other granddaughter also live on the same street. Her partner was placed into a nursing home close to the estate so that she would be able to visit him. The council have told her she must move into a one bedroom flat, so they do seem to recognise that they have an obligation to home her, however, there are no one bedroom flats in the locality.