How Should a Landlord Handle a Tenant’s Death?
Covid-19 has tragically killed nearly 70,000 people in the US and infected more than one million people. As a result, landlords may experience the unfortunate death of tenants.
Here are some potential legal issues landlord face in these situations and how to deal with them.
1. Can the landlord let the tenant’s family members access the premises to dispose of the deceased tenant’s property?
Not necessarily., Only “authorized persons” can access the premises. If the landlord allows unauthorized persons to access the premises to remove the deceased tenant’s property, the landlord may expose himself or herself to liability. Even if the individual is a family member of the deceased, he or she may still not be an authorized person authorized to dispose of the properties. Authorized persons are only the following:
If there is a will, the executor/executrix appointed in the will;
If there is no will, then an administrator/administratrix will be appointed by the Surrogate’s Court, who is usually the spouse or an heir of the deceased;
If there is no will and there is no known heirs, then the court will appoint the government ’s public administrator to handle the obligations.
In extreme cases, if the tenant lives alone, the landlord may even consider changing the locks to prevent the deceased tenant’s belongings from being stolen.
An executor and an administrator will be given a document called “Letters Testamentary” or “Letters of Administration” by the Surrogate’s Court. A landlord should ask for this proof before allowing the individual into the premises.
Even though a person may be a close family member of the deceased, the person may not have been close to the deceased or there may be other intra-family disputes that may arise.
(Family members fighting over the legacy, all too familiar, isn’t it?)
Thus, it is always better to be safer than sorry.
2. What about situations where there is a lease that has not yet expired and/or unpaid rent?
What about compensation for unpaid rent or damages?If the premises is damaged or there is unpaid rent, the landlord must submit a proof of claim to the Surrogate’s court and serve it on the executor or administrator within seven (7) months from the date the court appointed the executor or administrator.
Who has the right to continue living in the premises?In general, for apartments that are not rent regulated, heirs of the deceased tenant who lived alone have no right to inherit the lease, and co-tenants of the deceased tenants can continue to live in the apartment for the remaining lease term in accordance with the lease.
As for rent-regulated apartments, certain occupants of a rent-regulated apartment may have succession rights to the apartment when the tenant named on the lease dies. That is to say, as long as the occupant of the deceased tenant’s apartment meets certain criteria, they can claim succession rights and become the lawful tenant of the rent-regulated apartment and enjoy rent that is much lower than the market price, and the landlord cannot evict the tenant if the tenant abides by the lease terms.
Specifically, in order to claim succession rights, the occupant must have
(1) lived in the apartment for more than two years (only one year for elderly or disabled persons);
(2) share a family-like relationship to the deceased tenant (only one year for elderly or disabled persons) prior to the death of the tenant; and,
(3) the apartment must be the occupant’s primary residence.
Can the executor/administrator sublet or assign an unexpired lease?
For a tenant who lives alone, if the lease period has not yet expired when the tenant dies, the executor/administrator can request in writing to the landlord to sublet or assign the unexpired lease, and the landlord has the option to either agree or terminate the lease within 30 days.
4. How can the landlord evict or legally take over the premises when no administrator is appointed?
The court system can be time-consuming and inefficient, and sometimes it may happen that the court has not appointed an administrator of the estate for three to four months or even half a year.
In some extreme cases, if there is a dramatic fight over the estate, it may even take several years before an administrator is appointed.
For the landlord, the fight over an estate could mean a loss of profits because the premises is vacant. In this case, what should the landlord do to take over the premises legally without losing more rent?
If there is an executor or administrator, the landlord can serve legal documents (such as eviction petition) on him or her to start the eviction proceedings.
If no executor or administer is appointed, the landlord must wait 90 days after the tenant ’s death to start the eviction proceeding in the Housing Court, and the legal documents for eviction must be served on the surviving spouse. If no surviving spouse exists, then on a surviving child; and, if no surviving child exists, then on one of the other heirs.
4. How does the Covid-19 pandemic affect the court system?
Due to the Covid-19 pandemic, effective on March 16, 2020, New York State Courts announced that the courts are closed for non-essential matters until further notice, and neither will the courts accept new case filings.
For Surrogate’s courts, the courts will only accept petitions and other papers filed by mail. For eviction proceedings, Governor Cuomo has issued a 90-day moratorium stating that eviction proceedings are on hold until no earlier than June 20, 2020.
That being said, in the unfortunate event that a tenant dies during the pandemic, it is in the landlord’s best interest to tread carefully on this issue.
The first thing the landlord needs to do is to ensure that the deceased tenant’s property will not be illegally removed before the court appoints an executor or administrator, otherwise the landlord may be liable for damages.
Inaddition, documents such as the tenant’s death certificate should be obtained as soon as possible to confirm the tenant ’s date of death. Also, the landlord should try to keep in touch with the deceased tenant’s family to stay informed as soon as an executor or administrator is appointed.
In conclusion, handling a tenant’s death is a complicated legal issue involving real property laws, landlord tenant laws, and estate law. A landlord may need to deal with at least two different courts — the Surrogate’s court and the Housing court — to resolve the matter.
Therefore, we strongly recommend that landlords find a lawyer who is proficient in landlord and tenant disputes and estate issues to represent them under such circumstances.
Still got questions? Consult us today!