Fixed term tenancies
The general law applies. Where joint tenants hold a fixed term, the survivors become the tenants. If a sole tenant dies the tenancy dissolves according to his will or on intestacy – see below under general law.

Periodic tenancies – joint tenancies
In the case of a periodic tenancy (including a statutory periodic tenancy) held by joint tenants, where one of he joint tenants dies the general law applies and the survivors become the tenants.

Periodic tenants – spouse living with sole tenant
Where the tenant was a sole tenant and immediately before the tenants death the tenant’s spouse was occupying the dwelling house as his or her only or principle home the tenancy vests in the spouse and not according to the tenants will or intestacy. However, the tenancy will not vest in the spouse if the deceased tenant was himself successor as defined in subsection (2) or (3) of section 17 Housing Act 1988. The effect of these subsections is that the tenancy will not vest in the spouse by virtue of section 17.

17. Succession to assured periodic tenancy by spouse
(1) In any case where -
(a) the sole tenant under an assured periodic tenancy dies, and
(b) immediately before the death, the tenant’s spouse was occupying the dwelling-house as his or her only or principal home, and
(c) the tenant was not himself a successor, as defined in subsection (2) or subsection
(3) below, then, on the death, the tenancy vests by virtue of this section in the spouse (and, accordingly, does not devolve under the tenant’s will or intestacy).
(2) For the purposes of this section, a tenant is a successor in relation to a tenancy if
(a) the tenancy became vested in him either by virtue of this section or under the will or intestacy of a previous tenant; or
(b) at some time before the tenant’s death the tenancy was a joint tenancy held by himself and one or more other persons and, prior to his death, he became the sole tenant by survivorship; or
(c) he became entitled to the tenancy as mentioned in section 39(5) below.
(3) For the purposes of this section, a tenant is also a successor in relation to a tenancy (in this subsection referred to as “the new tenancy”) which was granted to him (alone or jointly with others) if -
(a) at some time before the grant of the new tenancy, he was, by virtue of subsection (2) above, a successor in relation to an earlier tenancy of the same or substantially the same dwelling-house as is let under the new tenancy; and
(b) at all times since he became such a successor he has been a tenant (alone or jointly with others) of the dwelling house which is let under the new tenancy or of a dwelling-house which is substantially the same as that dwelling-house.
(4) For the purposes of this section, a person who was living with the tenant as his or her wife or husband shall be treated as the tenant’s spouse.
(5) If, on the death of the tenant, there is, by virtue of subsection (4) above, more than one person who fulfils the condition in subsection (l)(b) above, such one of them as may be decided by agreement or, in default of agreement, by the county court shall be treated as the tenant’s spouse for the purposes of this section.

A homosexual partner can be a spouse for the purposes of section 17. However [amember_protect levels='keywee' user_action='error' user_error='amember_error_default_user' visitor_action='error' visitor_error='amember_error_default_guest']they will have to show that there as at some point in the relationship a lifetime emotional commitment which was openly and unequivocally displayed to the outside world [Mendoza v Ghaidan 2004 2 A.C. 557] and [Southern Housing Group Ltd v Nutting 2004 EWHC 2982, Ch D].

Periodic tenancy – sole tenant / no spouse entitled to succeed
Where there is no succession of the tenancy to a spouse pursuant to section 17 the tenancy will devolve under the will or on intestacy but the landlord will be entitled to recover possession under Ground 7 if he begins proceedings not later than 12 months after the death of the tenant or, if the court so directs, after the date on which, in the opinion of the court, the landlord or, in the case of joint landlords, any one of them became aware of the former tenants death. The reference to “proceedings for recovery of possession” refers to court proceedings, not service of the section 8 notice (Guild form no. 14). The period of 12 months is therefore calculated from the date the proceedings are commenced [Shepping v Osada 2000 L. & T.R. 489, CA].

Ground 7
Ground 7 is a mandatory ground for possession and so the court must make an order without considering the reasonableness of the landlord’s request for possession.

Ground 7 expressly states that for the purposes of that ground the acceptance by the landlord of rent from a new tenant after the death of the former tenant shall not be regarded as creating a new periodic tenancy, unless the landlord agrees in writing to a change (as compared with the tenancy before the death) in the amount of the rent, the period of the tenancy, the premises which are let or any other term of the tenancy.

Note that if the tenant (i.e. the personal representative or the beneficiary, as the case may be) is not occupying “the dwelling as his only or principle home” the tenancy will cease to be assured and it will not be necessary to rely on Ground 7. The tenancy will be an ordinary common law tenancy terminable by a notice to quit.

The general law or common law tenancy

The death of the tenant does not terminate the tenancy [section 1 and 3(1) of the Administration of Estates Act 1925]. The tenants interest, whether it be for a fixed or periodic term, vests in the personal representatives who are liable to pay the rent from the estate [Youngmin v Heath 1974 1 A11 E.R. 461].

Where the tenant has left a will and the named executors are alive and prepared to administer the estate, the tenancy will vest in them from the date of death if they have obtained a grant of probate [Re Crowhurst Park 1974 1 W.L.R. 583]. Where there is a will but no executor with power to obtain a grant the estate vests in the Public Trustee [section 9 Administration of Estates Act 1925 (as amended)]. Where the tenant died intestate the estate vests in the Public Trustee until administrators are appointed [s9 Administration of Estates Act 1925 (as amended)].

Section 9 reads
(1) Where a person dies intestate, his real and personal estate shall vest in the Public Trustee until the grant of administration
(2) Where a testator dies and-
(a) at the time of his death there is no executor with power to obtain probate of the will, or
(b) at any time before probate of the will is granted there ceases to be an executor with power to obtain probate the real and personal estate of which he disposes by the will shall vest in the Public Trustee until the grant of representation.
(3) The vesting of real or personal estate in the Public Trustee by virtue of this section does not confer on him any beneficial interest in, or impose on him any duty, obligation or liability in respect of the property.

Once letters of administration have been granted the estate vests in the administrators from the date of the grant. Their title to the property does not relate back to the date of the death as with executors [Long (Fred) and Sons Ltd v Burgess 1950 K.B. 115].

The beneficiaries become entitled to hold the tenancy when it has been vested in them by an assent [s36 Administration of Estates Act 1925]. If the title is registered the beneficiary should register as proprietor [s41(4) Land Registration Act 1925].

As a periodic tenancy continues notwithstanding the death of the tenant, failure to terminate the tenancy by notice to quit will leave the tenancy in being [Wirral Borough Council v Smith and Cooper 1982 43 P.&C.R. 312 – landlord unable to bring possession proceedings against squatters because of failure to determine the periodic tenancy].
Although the death of the tenant does not automatically terminate the tenancy it may give the landlord the right to forfeit the lease if there is a forfeiture clause in the agreement allowing him to do so. It is of course safer to issue a notice to quit.

Service of notice to quit (Guild form no. 16)
Where the tenant was an individual who has died service of the notice to quit will depend upon various factors.

If there are executors
If there are executors of the tenant’s estate the notice should be addressed and served on them. Doing a probate search can discover their names. Information on how to carry out the search can be seen at http://www.hmcourts-service.gov.uk/cms/1226.htm.

Executors but no grant filed If there are executors but no grant has been filed at the Principle Registry (so that the names of the executors are not known) the notice may be served on the Public Trustee [s18(1), (2) Law of Property (Miscellaneous Provisions) Act 1994].

No executors or tenant died intestate
If there are no executors or if the tenant died intestate and no administrators have yet been appointed the property vests in the Public Trustee and (subject to anything in the agreement) the notice to quit should be addressed to “The Personal Representatives of” the deceased (naming him) and left or sent by post to his last known place of residence or business in the United Kingdom and a copy of it, similarly addressed, should be served on the Public Trustee at the Public Trust Office, 81 Chancery Lane, London, WC2A 1DD (020 7911 7127). See later for extract of s18 1994 Act.

The Public Trustee keeps a register of all notices served on him. To enter a notice on the register it should be accompanied by Form NL(1) of The Public Trustee (Notices Affecting Land) (Title on Death) Regulations 1995 (SI 1995/1330). The practice note accompanying s18 and provides assistance on completing the form is located here http://www.all4landlords.com/guidance/practicenotedeathoftenant.pdf

The Public Trustee website is here
A search of the register may be made against the name of the deceased person by using Form NL(2). In the event that the search shows an entry a copy of the document will be sent to the person requesting the search [reg4 1995 regulations].

Personal representatives been appointed
Once personal representatives have been appointed any notice to quit should be served on them. In order to discover their names the landlord can lodge an application for a standing search at the Probate Registry. A standing search is valid for six months, and if a grant issues within that time, you will automatically receive a copy of the grant and a copy of the Will. You may extend a standing search for further six month periods until you either receive a copy or conclude that a grant is unlikely to be taken. See this website for further details http://www.hmcourts-service.gov.uk/cms/1226.htm.

Vested in beneficiaries
Once the property is vested in beneficiaries the notice to quit should be served upon them [s36 Administration of Estates Act 1925].

Sections 17 & 18 Law of Property (Miscellaneous Provisions) Act 1994
Notices affecting land: absence of knowledge of intended recipient’s death.
17.—(1) Service of a notice affecting land which would be effective but for the death of the intended recipient is effective despite his death if the person serving the notice has no reason to believe that he has died.
(2) Where the person serving a notice affecting land has no reason to believe that the intended recipient has died, the proper address for the purposes of section 7 of the [1978 c. 30.] Interpretation Act 1978 (service of documents by post) shall be what would be the proper address apart from his death.
(3) The above provisions do not apply to a notice authorised or required to be served for the purposes of proceedings before—
(a) any court,
(b) any tribunal specified in Schedule 1 to the [1992 c. 53.] Tribunals and Inquiries Act 1992 (tribunals within general supervision of Council on Tribunals), or
(c) the Chief Land Registrar or any district registrar or assistant district registrar;

but this is without prejudice to the power to make provision in relation to such proceedings by rules of court, procedural rules within the meaning of section 8 of the [1992 c. 53.] Tribunals and Inquiries Act 1992 or rules under section 144 of the [1925 c. 21.] Land Registration Act 1925.

Notices affecting land: service on personal representatives before filing of grant.
18.—(1) A notice affecting land which would have been authorised or required to be served on a person but for his death shall be sufficiently served before a grant of representation has been filed if—
(a) it is addressed to “The Personal Representatives of” the deceased (naming him) and left at or sent by post to his last known place of residence or business in the United Kingdom, and
(b) a copy of it, similarly addressed, is served on the Public Trustee.
(2) The reference in subsection (1) to the filing of a grant of representation is to the filing at the Principal Registry of the Family
Division of the High Court of a copy of a grant of representation in respect of the deceased’s estate or, as the case may be, the part of his estate which includes the land in question.
(3) The method of service provided for by this section is not available where provision is made—
(a) by or under any enactment, or
(b) by an agreement in writing,
requiring a different method of service, or expressly prohibiting the method of service provided for by this section, in the circumstances.

Housing Benefit – Death of claimant
There is no provision to award HB following the death of the claimant. HB must cease at the end of the benefit week containing the date of the death [reg79(1) Housing Benefit Regulations 2006]. If the claimant has a surviving partner, her or she may make their own claim, but it is not covered by their deceased partner’s claim. Also the fact that the estate of the deceased may be required to pay for a notice period on the property does not mean that the deceased (or the estate) is somehow still entitled to HB.

Where the landlord is receiving HB, he shall be under a duty to notify the local authority in writing of a change of circumstances i.e. the tenants death [reg 88 Housing Benefit Regulations 2006].

Payment of HB on death of person entitled.
If the claimant dies but the authority has already decided to make payment direct to the landlord, any benefit up to the amount of any rent outstanding must be paid to the landlord. To qualify, the landlord must make a written request to the authority within 12 months of the claimants death [reg 97 Housing Benefit Regulations 2006].[/amember_protect]