[claygoldstein]

What is general law/policy with rental leases when the tenant passes away: What happens with deposite, any ending lease fees to the estate?

Thanks

[landlord advocate]

Read your lease and see what you have agreed too. In the mean time, don't let anyone take items out of the rental property. There is an executor of the will who will be responsible to settle with you. The deposit is an asset of the deceased. It will be returned if all rent is paid and there is no damage to the rental property. We've had this happen to us and several of our clients over the years. The biggest mistake the landlords seem to make is allowing relatives and friends in to the rental property, then items of value disappear and the executor wants to know what happened.

[scri8e]

This is the best advise I have ever read on the topic of the death of a
tenant. I have had one tenant die. At the hosipital not in my unit.

Read and learn:

This is a serious issue and was a recent topic at an investors group.
The following article was printed in this months apartment assn
magazine. Suggest everyone check their state laws and try for changes if
needed.
WHAT HAPPENS WHEN A TENANT DIES?
By Mitchell S. Ritchie Copyright 2006
Among the most vexing questions in the Florida landlord and tenant field
is the one titling this article. Almost every owner or manager has
learned by rumor or official report that a renter living alone has
passed away and now they need legal advice on how to proceed. A simple
call to your attorney would suffice, but for sheer entertainment value
the manager may want to deliver the news in person. The death notice
will almost certainly cause the attorneyís respirations to increase,
his brow to furrow, and possibly even bring small beads of sweat to his
forehead. He knows heís got a problem.
The recurring dead tenant scenario raises thorny questions but, sadly,
Florida law provides few definite answers. Unlike other states,
Floridaís legislature treats tenants as immortals. The Florida
Landlord and Tenant Act omits any mention of a tenant in life becoming a
tenant in death. More will be said later on current efforts to prod the
legislature to address this problem. For now, though, the quick and
simple advice at the point of impact is:
CHANGE THE LOCKS!
The dead tenantís property belongs, at the moment of death, to a legal
creation called the Estate of Tenant X. The estate will include the
property left behind in the apartment. The apartment complex can be held
accountable by the estate in court for any loss of the tenantís
property caused by unauthorized access given to thieving relatives or
friends of the deceased.
And just who is ìauthorizedî to gain access to the deceased
tenantís apartment? Certainly a co-tenant on the lease can come and go
as usual. But for the deceased sole occupant, the only safe answer is:
Anyone that a probate judge says is authorized. This points toward the
second piece of advice: wait for someone to show up with a court papers.
If done correctly, these papers will unequivocally allow a certain
person to exercise control over the tenantís belongings found in the
apartment.

THE WAITING GAME
This second stage of ìwaitingî may actually require concentrated
effort by the landlord depending on the facts at hand. Under the most
favorable circumstances, the tenant will have surviving family and
friends who will actively seek to settle the tenantís remaining
property. If so, it is possible that a survivor can utilize a portion of
the Florida probate code titled Disposition of Personal Property. To
qualify, the tenant must have property of only modest value in the
estate. After determining the approximate value of the estate, the
landlord (or the landlordís attorney) can advise the survivor that
this special probate provision allows a court to release a dead
personís assets (not exceeding $6000) to someone who has paid for
final expenses such as funeral costs or medical bills within 60 days of
death. This arrangement follows the customary end of life payments on
behalf of deceased loved ones and it is designed the hasten the
reimbursement of family and friends who have buried or cared for the
deceased.
Should the tenantís estate qualify and a family member or friend be
eligible for this procedure, that person simply goes to the probate
clerk with a death certificate, receipts for expenses paid, and an
inventory of the tenantís property (and a will if there is one). No
attorney is required to apply for the tenantís property and if
questions occur the clerk must help the person fill out the forms. Since
the filing fee is only $100, landlords and owners may consider assisting
the survivors with this cost as a means of expediting the return of the
apartment.
After filing the petition, the judge will give a swift response, usually
within 24 hours. Typically a letter or brief order will issue allowing
the petitioner to obtain possession of the decedentís personal
property. After presenting this paper to the management, the petitioner
is authorized to claim the tenantís personal effects and cart them
away.
Again, this rapid fire process is the best result to hope for. What
happens if there is no family or friend or if they are unwilling to
spearhead even a simple probate case? Well, the matter becomes
difficult. Here, in an exercise of pretzel logic, the landlord or owner
himself can file for probate of the tenantís estate as an
ìinterested person.î After establishing an estate, the landlord
oddly enough can then sue the estate for nonpayment of rent and recover
the unit legally. Not surprisingly, this Byzantine procedure could be
expensive and take months to complete.


NO SHORTCUTS
Given these unappealing legal alternatives at the time of a tenantís
death, the landlord may search for a way to avoid the presently harsh
consequences of properly disposing of a dead tenantís belongings.
Given the potential liability, though, the landlord should resist the
temptation to wrongly simplify an inherently complicated situation.
Which suggestions might beckon to the aggravated landlord or manager? A
common device seeking to circumvent the probate code is a standard form
allowing the tenant to designate someone to enter the apartment after
their death. It sounds perfectly sensible, but legally, this could be a
trap. For a personís writings to be enforceable after death, they must
show a testamentary intent and conform to the formalities for making a
will. The intent can be argued, but almost certainly the landlordís
form will lack the formalities of the probate code. Therefore, the
authorization cannot be honored even in probate. Therefore even this
good faith nominee must be restricted from access until they obtain the
courtís permission.
Similarly, a landlord cannot acquiesce simply to allow anyone with a key
to enter the deceased tenantís apartment. It might occur to the
landlord that the tenant gave the key bearer implicit consent to enter
the premises after death. But it is easy to see that a key given by the
living tenant does not serve to give the key holder consent to enter the
dead tenantís apartment for any purpose. Adopting a laissez-faire
attitude could be negligent when merely changing the locks would have
permitted an orderly disposal of the tenantís estate and prevented
wrongdoers from pillaging the apartment.
Another shortcut to avoid is trying to fit the deceased tenant problem
into the ready made remedies of the Landlord and Tenant Act. Remember,
Florida law does not address the precise dead tenant quandary. So the
landlord should not twist the Act to view the deceased tenant as if they
abandoned the rental unit under Chapter 83. Some might argue, for
instance, that Florida law allows a landlord to retake a rental unit if
the tenant, without prior notice, has been absent for more than one-half
the payment period (usually 15 days) and the rent is unpaid. As a
result, they would say, the deceased renter, being absent and
non-paying, exactly fits the bill. However, it can be delicately pointed
out that statutory abandonment presupposes a voluntary act when the
tenant leaves the unit. The dead tenant hardly agreed to depart the
premises under these dire circumstances. Therefore, Chapter 83 will not
easily help a landlord to label the tenantís death as a skip without
notice.
In the same way, landlords should reject the urge to officially end the
tenancy by filing an eviction for nonpayment. This may also seem
attractive because there is unpaid rent and the judge will
authoritatively order the tenantís removal. Consider too that personal
service is not required and, without a response from the tenant, the
judge will not know the tenantís status when he signs the papers. But
this only as compounds the problem of treating deceased tenants as if
they were alive, not to mention the impropriety of shading the truth
when submitting papers to the court.

[scri8e]

Continued. The post was too long...
THERE OUGHTA BE A LAW!
These caveats for landlords looking for simple solutions speak to the
Current state of things. Looking to the future, Florida at last seems
Poised to join Ohio, Alabama, California, Illinois and others states in
Removing the dead tenant scenario from the probate court. To accomplish
This, the legislature may in fact bend the rules in ways a landlord
Cannot. While the landlord cannot decide a deceased tenant has abandoned
The tenancy, the legislature can. And so in 2006, a bill was filed
Amending to treat deceased tenants in a way similar to abandoning
Tenants. ìThe landlord shall not recover possession of a dwelling unit
Except: When, 45 days after the date of death of the tenant, the rent is
Unpaid and the landlord has not been notified of the existence of a
Probate estate or name and address of a personal representative.î This
Provision would allow a landlord to wave goodbye to eviction and probate
And simply retake the dead tenantís apartment so long as a) 45 days
Have elapsed since the death, b) the rent is unpaid, and c) no
Notification was made of a probate of the tenantís estate.
This legislative proposal was a panacea for the problems plaguing this
Unhappy marriage of probate and landlord and tenant law. By avoiding
Litigation and giving a deadline for retaking the premises, the terms of
The bill meant less stress and better planning for landlords and their
Attorneys. However, the bill withered on the vine and never left the
Reviewing committee. It is rumored that the bill will be reintroduced in
2007. Readers are encouraged to contact their representatives in support
Of this law.
In conclusion, until current law is changed, the death of a tenant is a
Problem for landlords. The degree of difficulty is at first uncertain
But could range from a simple probate procedure to a filing a probate
Case with a subsequent eviction. No landlord wishes to face these hard
Alternatives, but no attorney will advise shortcuts such as eviction,
Abandonment or written prior consent by the tenant. For the present, the
Answer lies with the legislature to provide a clear and less expensive
Solution to this question of what happens when a tenant dies.
Mitchell S. Ritchie, Esq. is an attorney in Jacksonville, Florida, with
Over 12 yearsí experience handling private and subsidized rental
Housing issues. He May be reached at
904-387-6100