Succession after mutual exchange.

eezyrider

My son (aged 40) has lived with his mother for 25 years. Sadly she died 2 months ago and the tenancy agreement was in her name. He applied for succession of tenancy and has been refused on the grounds that they did an exchange in 2015 (quote:After the law changed in 2012) and that counts as the one succession. 

I'm sure the local Council know the rules but are they applying them correctly?

Thanks for any help.

theartfullodger

Which country (eg Wales, NI..)??

Do you mean there was an exchange of named tenant(s) on the tenancy in 2015 please?? (Exchange normally to do with sale of property)

Suggest you (carefully) read council's policy on succession (there are laws, but differ by country) and also look up the relevant (country) site of Shelter legal - e.g. for England ---
https://england.shelter.org.uk/professional_resources/legal/renting/succession

tacpot12

The law certainly did change in 2012 to allow one one succession, but I'm not sure it is correct that the exchange qualifies as a succession. 

Is it possible that your son's mother succeded to her previous tenancy, e.g. was she a joint tenant with someone (e.g. you) and then became a single tenant? (So the council are right, but not for the reason they stated)

Your son should contact Shelter to get them to check whether he has a right of succession.

eezyrider

They live in England. They were asked by another tenant in the same street if they would exchange properties and they agreed.
Have looked on Shelter but find this statement clouds the issue:
''Assignment by mutual exchange does not count as succession. A tenant who was a successor before the mutual exchange remains a successor in their new property.'' - Not so according to our local Council. They say that the law change in 2012 forbids this....or am I putting the wrong interpretation on this because he was not actually the tenant? i.e. does it mean someone who succeeded to a tenancy can continue that succession in an exchanged property?

eezyrider

@tacpot12 - Thank you. No his mother did not succeed to the tenancy. She was the tenant from the start. 

They specifically told him his application is refused because the exchange counts as the one succession allowed

eezyrider

Ah..things have become a little clearer.

It seems that the 2012 law limited the right of succession to spouses, civil partners and the like. The right of succession since then does not apply to offspring, siblings and other family members although it seems many councils still use discretion to allow it. 

In my son's case because they did a mutual exchange in 2015 it started a new tenancy and rights were lost at that point. So he has 6 months to find a new home.

Ratkin007

Mutual exchange is not a succession and it should also not be a new tenancy, so advice should definately be sought.  You are right, the change in law was about restricting who could succeed to a tenancy, however that does not apply to tenancies that began prior to some date in 2012.  Did your son make a written application to succeed and has the refusal been put in writing or was it done verbally.  If done verbally, he should make a written application. it also does not sound right that your son has been told he has 6 months to find alternative accommdation.  If he cannot succeed to the tenancy then the housing provider should be taking steps to take the property back straight away.  The 6 months usually apply when someone succeeds to a tenancy but is under-occupying the property, but then the landlord offers alternative accommodation.  Do you have the paperwork around the mutual exchange, as that will  make it clear whether a new tenancy was created (in which case it is possible there is no right of succession, but there would be information in the tenancy agreement) or whether it was a deed of assignment.  Not sure what the situation would be if the other party to the exchange was themselves a successor. 

eezyrider

@Ratkin007 Thank you for that information.

My son made a written application and delivered it by hand. He subsequently received a phone call saying it was lost and to reapply. This week he has received a call to say his application has failed because his mother exchanged in 2015 (having been a tenant since 1998) and he does not fit the relationship criteria for succession as the exchange invoked a new tenancy agreement.

 He asked what was his position now and was told he is granted (from memory) something like a ''licence to operate the tenancy'' which allows him 6 months grace. He was told he must apply to join the housing list.

We are awaiting the paperwork.

The circumstances of the mutual exchange as far as I am aware are that it was a simple exchange of houses between tenants. My son says they were not given any information about losing rights. I will ask him if he has paperwork relating to this.

eezyrider

We now have the paperwork. The mutual exchange took place in 2015 and a new tenancy agreement was signed. This signed away my son's rights of succession due to the change of law in 2012. Meanwhile he has a 3 months licence to occupy. 

Thank you all for your help.