Child succession and secure tenancies

Section 87 of the Housing Act 1985 provides that a person is qualified to succeed to a secure tenancy if he (or she) is the tenant’s spouse or another member of the tenant’s family and has resided with the tenant throughout the period of 12 months ending with the tenant’s death. The phrase 'member of the tenant’s family' is defined in s 113(1) so as to include a child but the difficulty is that a minor (under the age of 18) does not have capacity to hold a legal estate in land: s 1(6) of the Law of Property Act 1925.

The upshot therefore is that the child will acquire only an equitable interest in the secure tenancy pending majority. If the deceased tenant dies intestate the legal estate in the tenancy will vest automatically in the Public Trustee pending the grant of letters of administration to an appropriate relative. Alternatively if the tenant dies leaving a will the legal estate will pass to their executor(s) named in the will. Either way it is apparent that the legal estate will have vested in a...

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