The death of tenant in an assured shorthold tenancy

Sadly it is sometimes necessary to manage your property following the death of a tenant, so it helps to be aware of your rights and responsibilities to ensure the process is straightforward, stress-free and to avoid legal complexity. The following guidance will help landlords take the practical steps needed when a tenant dies.

If a tenant dies is the lease null and void?

The answer to this question depends somewhat on the circumstances. If a tenancy has been taken out in joint names, then the remaining tenant will take on the responsibility of the tenancy agreement by ‘right of survivorship’.

What happens in different types of tenancies?

Fixed term tenancy

When the tenancy is within its fixed term, the remainder of that term is deemed a property right, so the ownership of that right passes to the deceased’s representatives in the same way that an estate might.

Statutory tenancy

If the tenancy is a periodic ‘statutory’ tenancy then under the Rent Act 1977 then the tenancy will pass to the spouse or to another member of the deceased tenant’s family living at the property at the time of death.

Periodic assured tenancy

Under the Housing Act 1988, the tenancy will normally pass to the spouse, should they exist, as with an assured shorthold tenancy. Here the landlord can end the tenancy by serving a section 21 notice and recover possession through the courts should they wish to.

What if there is no eligible successor?

When there is no one to succeed the tenancy under the 1977 Rent Act or the 1988 Housing Act, then the tenancy is passed to the tenant’s Personal Representatives.

If a tenant dies, what happens to the deposit?

If rent is owed to you then the deposit should be used to cover some of the arrears once the tenancy has ended. The legal or Personal Representatives of the deceased tenant, and subsequently the tenant’s heirs, are entitled only to claim any deposit money that remains once rent arrears have been settled.

What is a personal representative?

A personal representative is the person who is responsible for executing the will of the deceased or managing the administration when a person dies without a will. They are usually a family member or a friend of the deceased.

What happens if a tenant dies with no family?

A personal representative of the deceased may or may not be a family member. That individual is responsible for the same obligations as the tenant was, which means that rent arrears are due to the landlord from the estate of the deceased before monies can be passed to any beneficiaries. It is important to be aware that the personal representative is not personally responsible for any rent arrears, they just manage the deceased’s estate. Therefore if the tenant dies with no money and owing rent then the landlord will not be able to recoup that loss.

Where there is a risk that a landlord may lose out on rent, it is possible for the landlord to agree to take the property back in spite of remaining time on a fixed term tenancy, so that they can re-let it. Under a periodic tenancy the personal representative can serve a notice to quit to the landlord to end the tenancy.

If my tenant dies how do I end the tenancy?

In general it tends to be most convenient for a landlord to take back a tenancy so they can continue to make a rental income, especially in cases in which there is no guarantee the income will be paid from the deceased’s estate. However, because ownership of the right to live in the property passes to the Personal Representative, the landlord will need to seek their agreement to relinquish that right.

In this scenario, to formally end a periodic tenancy, the landlord will need to serve notice to the personal representative. The representative can then agree or disagree to give up the possession. If there is someone still living at the property then the landlord may need to apply for a court possession order.

If the contract is an Assured Tenancy Agreement then landlords will need to serve a section 21 notice, whereas in an assured tenancy the landlord can serve a section 8 notice and cite ground 7. In a common law or unregulated tenancy then they can serve a Notice to Quit.

What do I do if my tenant dies and has no personal representative?

In the scenario where your tenant has no friends or family to represent them, then you will need to contact ‘The Official Solicitor and Public Trustee’ who has the legal authority to manage the deceased’s estate after their death.

The death of a tenant can be an unsettling and upsetting business, particularly if you are dealing with Personal Representatives close to the tenant who died. Therefore the ideal scenario is to make the process as straightforward as possible for all involved. In general,  most landlords will take the property back in agreement with the deceased’s family, but this guide can help to manage the situation if there is no firm agreement between parties. You can discover further detailed information on the  government website.

Hopefully handling the death of a tenant is one of the less frequent responsibilities you will undertake as a landlord, but there are other sensible steps you can take to look after the investment you have made in your rental property. Taking out the right level of landlord’s insurance is one of them. Call us today for your quotation.

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