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Death of a tenant – a legal view

Wednesday 05 June 2019

Gina Peters, a partner and solicitor for Dutton Gregory who is the provider of the ARLA Propertymark Helpline, has a wealth of experience in commercial and property litigation and has written an exclusive article on her specialised expertise, focusing on the death of a tenant and what approach to take as an agent.

The English are not good at talking about death, at least not in the context of our own mortality. For many it is a somewhat awkward and ‘taboo’ subject. Without putting too morbid a spin on it the simple fact is, death comes to us all. With knife crime increasing at an alarming rate, cancer affecting one in four of us (or indications are that it soon will) the population living longer, and the world being a generally more dangerous place to live and work, the chances are that as a managing agent you will at some stage of your career face the death of a tenant in one of your properties.

This may bear a rather depressing thought, but as a regular feature on the ARLA Propertymark telephone helpline it seemed as good a time as any to explain some of the issues that arise from the death of a tenant. At least knowing what to do if the inevitable does occur, you can make the situation more bearable for not just the landlord but those that may be left to deal with a difficult and emotive e event.

Scenario 1: Tenant dies during an assured shorthold tenancy agreement

This could play out in a variety of ways in terms of your discovery of the death, but I will keep it to two – (1) death by natural causes, and (2) suspicious circumstances.

Who will pay the rent?

Of main concern in either case for a landlord is who is going to pay the rent? Under English law, an assured shorthold tenancy does not end automatically on the death of a tenant but passes to the tenant’s estate. As an agent it is important to establish a line of communication if possible, with the deceased’s next of kin, as this should lead to you being able to find out whether the tenant left a Will or not. If there is a Will this will confirm who can act as the Executor and you will be able to liaise with them. You must obtain sufficient evidence from the estate’s representative to feel confident that they have the required authority to deal with the deceased’s affairs. This is particularly true if there is any money to be returned to the estate, perhaps some deposit monies but is also true of the personal effects left in the property. On a practical level if there is a Will and an appointed Executor the best route forward is to try to organise for the tenancy to be surrendered on a date to be agreed. As the rent will be accruing, regardless of whether the deceased’s estate is able to cover that liability, it is in everyone’s best interests to terminate the tenancy as soon as possible.

If the tenant dies intestate

If the tenant dies intestate, you will need to liaise with the court-appointed administrator who could be next of kin or a specialist court officer called the Public Trustee if there is no family member. If you really have no idea who is a tenant’s next of kin it is worth contacting the Public Trustee to see if they are already acting. If you cannot get cooperation from the personal representatives in either scenario and the tenancy has gone periodic you may have to serve a Section 21 notice. All usual rules apply but the notice should be addressed to “The Personal Representatives of [full name of deceased tenant] of [property address if last known address]” and you will need to serve at the property and also send a copy of the notice to the Public Trustee together with a completed application to register a notice form.

If the tenant dies of suspicious circumstances

If the tenant dies of suspicious circumstances, this could cover suicide or murder for example, you may find that the rented property becomes a crime scene for a while. The length of time the property remains out of bounds will depend on the degree of investigation required. However, agents will need to go through the same procedure to establish who they will need to liaise with to surrender the tenancy and clear the property. It may simply be a longer process. However, a tenant may have died, it is a sensitive situation and it is worth a short letter on behalf of the landlord to those acting for the deceased. This should show how the landlord hopes that the tenancy can be ended, and the deceased’s belongings removed from the property. It usually amounts to a commonsense approach with some flexibility for those who are caught up in the aftermath of the tenant’s death.

Scenario 2: Death of a Rent Act tenant

There are some complicated succession rules that apply to the death of a Rent Act tenant – a protected tenant under the Rent Act 1977. This differs considerably from assured shorthold tenancies as the succession rules apply automatically on the death of the tenant. Often a protected tenancy has been running for many years, well before the introduction of the Housing Act 1988. The original protected tenancy is often in the names of two spouses (if you have any paperwork at all!). Upon the death of one tenant the surviving spouse inherits the same protected tenancy. There is only one possible further succession after that first death that will benefit as a family member living in the property for at least two years before the protected tenant’s death. Such a family member will automatically become an assured tenant at that second death and will have to pay a market rent. Upon that person’s death, there are no further succession rights. Often competing family interest and a lack of paperwork can complicate matters even more and property managers are strongly urged to get professional advice before proceeding.

Conclusion

You need to know who you are dealing with on the death of a tenant and ensure that whoever you deal with is properly authorised. If you choose to risk negotiating the surrender of a tenancy and returning monies or possessions without the proper paperwork someone with the correct authority may turn up seeking an explanation, if not compensation!

This article was originally published in issue 34 of Property Professional, our exclusive members' magazine, visit the join section to learn Property Professional and the other membership benefits. Members can download digital copies of Property Professional from the online shop.