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Death of a tenant: What are landlords and letting agents’ rights and responsibilities?

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29 Feb 2020

 Tenant -dies

While it is a difficult subject to tackle, and certainly one no landlord or letting agent ever wants to face, it isn’t uncommon for a tenant to die mid-tenancy. 


A tenant dying while renting your property is likely to be stressful, traumatic and confusing for a landlord or letting agent. As well as being a rather morbid subject, it is also a legally complex one. Knowing your rights and responsibilities as a landlord or letting agent before you find yourself in this distressing situation will help you navigate your way through the legal quagmire.  


Here is an overview of what you need to know if a tenant dies during an assured shorthold tenancy agreement (AST). 


Who pays the rent?

Under English law a tenancy does not end when a tenant dies, the tenancy - including rent or other monies owed - passes to the deceased’s estate. This means a landlord or letting agent can’t simply take back the property and put it on the rental market. 


Your first step should be to communicate with the deceased’s next of kin to determine whether there is a Will. 


Assuming there is a Will, the property becomes part of the deceased tenant’s estate and the executor of the Will takes over the tenant’s obligations and is liable for rent until probate is granted. 


Many landlords - and the executors  - would rather terminate the contract, but this is easier in some circumstances than others and will need the agreement of all individuals involved. 


The first step - liaising with the next of kin

Landlords don’t need to wait until probate in order to start making arrangements. If you can, establish contact with the next of kin to request a copy of the Letters of Administration which will confirm the executor of the estate. 


It is imperative that you obtain proof of any third party’s authority to act for the deceased tenant’s estate before entering into any negotiations to end the tenancy or deal with the deposit. While getting proof is another - sometimes frustratingly slow - step in an already heavily red-taped process, securing evidence of the executor’s right to act on the deceased's behalf should ultimately make dealing with the tenancy and any monies owed smoother. 


If the tenant dies with no Will - known as intestate - and has no friends or relatives or there is no-one able to deal with the administration of their estate after their death, a Public Trustee will take on the authority to deal with the deceased’s estate.


How can I end the tenancy?

Once you’ve established proof of executor, you are in a position to let the estate know you are willing to end the tenancy (presuming that is what you want to).


Be sure to set out the terms of the surrender and include the agreed date of the termination according to the original tenancy agreement. If this is accepted, the executor will write an early release letter, acting on behalf of the deceased and the property becomes yours again. 


This will follow the same process as any other end of tenancy - the keys must be returned to you and a check out inventory taken, while the estate is obliged to remove the tenant’s belongings and organise for the place to be cleaned. 


Any damage to the property will come out of the tenant’s deposit as usual - this includes any damage caused relating to the death of the tenant ie the emergency services having to break down a door to gain access to the property. 


What if the Personal Representatives don’t agree to giving up the property?

In the event the executor does not want to surrender the property, or the person living in the property does not want to move on, you will need to serve a Section 21 notice if the tenant was on an Assured Shorthold Tenancy. 


If there is no one to act on the deceased’s behalf, under ‘succession’ provisions stated in the Rent Act 1977 or the Housing Act 1988, the tenancy will pass to the tenant’s Personal Representatives.


What if the tenancy is in joint names?

If the tenancy is in joint names then the living tenant will acquire the deceased tenant’s share. They will need to cover the rent of the deceased tenant; you may need to draw up another tenancy agreement. If the deceased tenant shared the property with a husband, wife or civil partner, then they will have the right of succession, regardless of whether they are included on the original agreement. If the partner decides to stay on in the property, they take on the obligation and terms of the tenancy, including the rent. 


What if the tenant dies in the property?

If the tenant died in suspicious circumstances, for example suicide, manslaughter or murder, the property may become a crime scene and, depending on the investigation, may be out of bounds for weeks or even months. 


But once you can gain access to the property, the process is similar - a landlord or letting agent will need to liaise with next of kin to discuss next steps such as terminating the tenancy and clearing out the deceased belongings. When communicating with the next of kin, particularly if the tenant died suddenly, you are likely to be dealing with people who are shocked and distressed. Be professional, but sensitive and flexible - their number one priority is unlikely to be dealing with their loved one’s outstanding rent. 


It is best practice to write to family members or an executor setting out what date the property you would like the property emptied and if you plan to charge rent during the time between the tenant dying and the tenancy being terminated.


Will my landlord’s insurance cover any lost rent or cleaning up?

There are companies that specialise in cleaning properties following incidents such as a sudden death. You may also have to cover the cost of broken doors or damaged walls. Your landlord or building insurance may be able to help cover costs of cleaning and repairs but check the terms of your policy as it may depend on the circumstances of the death. Unpaid rent is unlikely to be covered by your insurance policy in these circumstances but check with your insurance provider. 


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