Under the Housing Act 2004, a spouse or civil partner has the right to succeed, in most circumstances, to an assured tenancy where he or she was cohabiting with the deceased immediately prior to the death.
Whilst that is all reasonably clear, the definition of what constitutes a spouse for the purpose of this legislation (the Housing Act 2004 defines a spouse as someone ‘living with the tenant as his or her wife or husband) has caused numerous arguments.
In a case involving the surviving member of a homosexual couple who were not civil partners, the survivor who had lived with the tenant for more than 2 years, applied to succeed to an assured tenancy entered into by his partner but the application was refused.
The criteria applied to determine if the relationship was one of living together is;
1. Had the couple openly set up home together?
2. Was the relationship one of mutual lifetime commitment?
3. Was the relationship presented openly and unequivocally to the outside world, so that it could be considered permanent?
4. Did the couple have a common life together, both in relation to the household and in relation to friends and family?
In other words, the principal factor in assessing whether one partner in a relationship was or was not a spouse was what the outside world would have considered the relationship to be, rather than what the domestic arrangements were. Whilst living together for a long time might corroborate the existence of such a relationship, it was not of itself conclusive.
On the basis that the criteria had not been demonstrated to exist, the application to succeed to the tenancy failed.
This case illustrates the lack of protection afforded to an individual, who lives with an assured tenant but where the couple do not enter marriage (or a civil partnership), unless that person becomes a co-tenant in which case succession is not an issue.
If you require any legal advice relating to this matter or any aspect of landlord and tenant, please do not hesitate to contact us on 01536 276300.