Scottish secure tenancy: model agreement 2019

7 After The Tenant’s Death

7.1 If you die, the tenancy may be inherited by one of the following people in the following way.

From 1 November 2019 there will be new notification and residency requirements that have to be met for someone to inherit your tenancy and these are set out for the various levels below.

7.2 Level One

• your spouse, civil partner or co-habitee if the house was their only or principal home on your death; OR
• a joint tenant, if the house was his or her only or principal home on your death.

In the case of a co-habitee, he or she must also have occupied the house as his/her only or principal home for at least 6 months immediately before your death.

From 1 November 2019 a co-habitee must also have occupied the house as his/her only or principal home for at least 12 months immediately before your death.

The 12 month period cannot begin unless we have been told that the individual is living in the property as their only or principal home. We must have been told that by you, a joint tenant, or the person who wishes to succeed to the tenancy. The length of time they have been living in the property starts from the date we are notified that the person is living in the property as their only or principal home. You can give us notice of someone living with you before 1 November 2019 and that time will count towards the length of time they have been living at the property.

If more than one person qualifies for the tenancy under Level One, they must decide among themselves who should get the tenancy. If they cannot agree, we will decide.

7.3 Level Two

If no-one qualifies at Level One, or a qualified person does not want the tenancy, it may be inherited by a member of your family as long as:

• he or she is aged at least 16 at the date of death;
• the house was his or her only or principal home at the date of death.

From 1 November 2019 the member of your family must have occupied the house as his/her only or principal home for at least 12 months immediately before your death to qualify to succeed to the tenancy. The 12 month period cannot begin unless we have been told that your family member is living in the property as their only or principal home. We must have been told that by you, a joint tenant, or the person who wishes to succeed to the tenancy. The length of time they have been living in the property starts from the date we are notified that the person is living in the property as their only or principal home. You can give us notice of someone living with you before 1 November 2019 and that time will count towards the length of time they have been living at the property.

If more than one person qualifies for the tenancy under Level Two, they must decide among themselves who should get the tenancy. If they cannot agree, we will decide.

7.4 Level Three

If no-one qualifies at Level One or Level Two, or a qualified person does not want the tenancy, it will be inherited by a carer as long as:

• he or she is aged at least 16 at the date of death;
• the house was his or her only or principal home at the date of death;
• he or she gave up another only or principal home before the death of the tenant;
• he or she is providing, or has provided care for the tenant or a member of the tenant’s family.

From 1 November 2019 the carer must have occupied the house as his/her only or principal home for at least 12 months immediately before your death to qualify to succeed to the tenancy. The 12 month period cannot begin unless we have been told that the carer is living in the property as their only or principal home. We must have been told that by you, a joint tenant, or the carer who wishes to succeed to the tenancy. You can give us notice of someone living with you before 1 November 2019 and that time will count towards the length of time they have been living at the property.

If more than one person qualifies for the tenancy under Level Three, they must decide among themselves who should get the tenancy. If they cannot agree, we will decide.

7.5 If the house was designed or substantially adapted for a person with special needs, no person will qualify under level two or three above unless that person has special needs requiring the type of accommodation in the house. If a person would have qualified, but for this paragraph, we will make other suitable accommodation available.

7.6 If someone qualifies for the tenancy but does not want it, they should tell us in writing within four weeks of the death and leave the house within three months. Rent will be charged only for the actual period of occupation.

7.7 The tenancy can only be inherited twice under the provisions noted above. If the tenancy has already been inherited twice, the third death will normally end the tenancy. This will not happen if there is a surviving joint tenant whose Scottish secure tenancy will continue. However, if there is still a person in the house who would otherwise qualify to inherit the tenancy under the above paragraphs, the tenancy will continue for up to 6 months after the last death. The tenancy will not be a Scottish secure tenancy for that period.

7.8 Where the landlord is a registered social landlord which is a co-operative housing association the qualifying person must also apply for membership and be accepted as a member of the association within a four week period of the tenant’s death or notification of right to succeed. If the qualifying person fails to do so or the association refuses the application for membership, the person will be treated as having declined the tenancy at the time of the tenant’s death.

7.9 The provisions noted above are a summary of the law which is contained within Section 22 of the Housing (Scotland) Act 2001. This summary does not alter that law.