If you are a council tenant and are anxious to ensure that a loved one succeeds to your tenancy after your death, you should seek legal advice straight away. A High Court case powerfully illustrated the potentially dire consequences of failing to do so.

The case concerned a 68-year-old woman who had lived in a three-bedroom council house, of which her mother was the secure tenant, since she was an 11-year-old girl. Following her mother’s death, the local authority sought a possession order against her on the basis that she had no entitlement to succeed to the tenancy.

Ruling on the matter, the Court had little doubt that the mother would have wished her daughter, who had cared for her and other elderly family members devotedly, to continue living in the house after her death. Had she died at home rather than in a care home, her daughter would have been entitled to succeed to the tenancy.

The mother suffered from dementia but, at any time prior to losing her mental capacity to make important decisions for herself, she could have assigned her tenancy to her daughter as a qualifying successor under Section 91(3) of the Housing Act 1985. She did not, however, take that course.

The council’s case was a simple one: the mother ceased to be a secure tenant of the property when it became apparent that there was no prospect of her returning home from the care home. At that point the house ceased to be her principal residence and her tenancy came to an end when she was served with notice to quit in the care home. There was thus no tenancy to which the daughter could succeed and she had remained living in the house as a trespasser.

The daughter argued, amongst other things, that her eviction would amount to a violation of her human right to respect for her home and family life. However, the Court noted that the council faced a dire shortage of family-sized properties. She had medical problems of her own and the condition of the property was such that there were concerns that it might not be safe for her to remain there. Overall, the Court concluded that her eviction would be a proportionate and justified step.

In making the possession order sought, the Court expressed sympathy for her and acknowledged that its decision would come as a blow to her. However, it truly believed that she had much to offer to others and could move forward with her life after leaving the property.