Landlords often deal with lease terminations for reasons like nonpayment, breach, or mutual agreement. But one of the most challenging situations is when the last remaining tenant dies during the lease term. Florida law provides some guidance, but landlords may rightly ask these questions in light of the landlord’s early termination remedy options under F.S. 83.595:
Can I charge the estate an early termination or liquidated damages fee?
Can I “stand by and do nothing” and let rent accrue during the remaining term of the lease?
The answers are not so simple and depend on how a judge determines certain questions. There is a bit of gray area where contract law, probate law, and F.S. ch. 83 pt. 2 intersect. Below, we break down the key legal points and practical implications.
Charging Liquidated Damages Upon Death of the Last Remaining Tenant
Florida Statutes § 83.59(3)(d) allows a landlord to terminate the lease under specific conditions when the last remaining tenant dies. The statute applies when:
- The tenant has died,
- Personal property remains on the premises,
- Rent is unpaid,
- At least 60 days have passed since the death, and
- The landlord has not been notified in writing of a probate estate or personal representative.
Once these conditions are met, the landlord may terminate the lease and retake possession. Importantly, this provision does not apply to federally subsidized housing programs, such as Section 8 or Section 202 housing.
Termination under the “death of last remaining tenant” statute triggers the landlord’s obligations under F.S. 83.49 and F.S. 83.491 regarding the handling of the security deposit or claim for damages.
Accrued Obligations Survive Death
A lease is fundamentally a contract. Under Florida contract law, obligations that accrued prior to a tenant’s death survive and can be enforced against the tenant’s estate.
F.S. 733.707 (Florida Probate Code) makes clear that valid creditor claims—including rent owed up to the date of death, damages to the unit, or other accrued charges—may be satisfied from the estate’s assets.
That means landlords can pursue unpaid rent and damages existing before the tenant’s death or the landlord’s regaining of possession. What you cannot do is simply wipe away debts owed up to that date. Those are legitimate claims.
Future Rent is Not Recoverable
Florida law prohibits landlords from accelerating and collecting unaccrued rent in residential tenancies. F.S. 83.595 allows landlords to choose certain remedies for early termination, but it does not authorize collecting rent for months after a tenant has vacated—or died.
Thus, landlords cannot claim future rent as damages following a tenant’s death. At most, you may recover unpaid rent up to the month accrued upon the landlord’s lease termination pursuant to F.S. 83.59.
The Early Termination Fee Question
The most controversial issue is whether a landlord can charge the statutory early termination fee (often called liquidated damages) when a tenant dies. F.S. 83.595(4) permits landlords to include an addendum in leases allowing the tenant to terminate early by paying a set fee, the maximum for which is two months’ rent.
The argument in favor of charging liquidated damages: The estate “steps into the shoes” of the deceased tenant. Because the lease is a binding contract, the estate is bound by all terms, including the liquidated damages addendum. The landlord could file a creditor claim in the probate court under F.S. 733.702 seeking that fee.
The argument against: Death is not a “breach” or “early termination” contemplated by F.S. 83.595. Specifically, F.S. 83.595 states,
“If the tenant breaches the rental agreement for the dwelling unit and the landlord has obtained a writ of possession, or the tenant has surrendered possession of the dwelling unit to the landlord, or the tenant has abandoned the dwelling unit, the landlord may…”
Notice that “death of tenant” is not present in this list. Thus, courts may view the fee as punitive and unauthorized by law. Probate courts scrutinize creditor claims closely, and personal representatives may object under F.S. 733.705 or may object to the landlord’s claim for the fee on the security deposit pursuant to F.S. 83.49.
While landlords may assert the claim, it may not be allowed given the absence of “death of tenant” in F.S. 83.595. Therefore, the argument against charging the fee is the more likely result on that issue.
The “Standy by and Do Nothing” Upon the Death of the Last Remaining Tenant
The other critical question for landlords is whether they may simply “stand by and do nothing” after the death of the last remaining tenant, leaving the unit vacant and holding the tenant’s estate liable for rent as it continues to accrue during the remaining lease term.
F.S. 83.595 sets out the exclusive remedies available to a landlord when a tenant breaches a lease and terminates early. Among the four options, the landlord is allowed to stand by and do nothing, collecting rent as it comes due. However, the statute does not list the death of a tenant as one of the causes of “early termination” (as noted above) that would trigger the remedies under that statute.
This distinction matters. Because death is not expressly contemplated as a breach under F.S. 83.595, the “stand by and do nothing” option is arguably unavailable. Instead, the landlord’s obligation must shift toward the implied contractual obligation of mitigating losses. That means, the landlord must retake possession of the unit pursuant to F.S. 83.59(3)(d) and use due diligence to re-rent the property as soon as reasonably possible.
The policy behind this interpretation is that the deceased tenant’s estate should not be burdened with indefinite liability for rent when the law already restricts recovery of future rent. Once the tenant has died, rent obligations accrued up to that point remain valid claims against the estate, but the landlord cannot continue to accrue rent charges by leaving the unit idle.
In practice, this means landlords should act affirmatively:
- Terminate the lease properly after satisfying the statutory conditions.
- Re-take possession as soon as statutorily possible and begin marketing the unit.
- Limit claims to accrued obligations (rent up to the point lease termination, damages, costs of possession) rather than future rent.
By doing so, landlords comply with a strict reading of F.S. 83.595, avoid disputes in probate court, and position themselves as having acted reasonably. In short, the death of a tenant probably does not give landlords a free pass to “do nothing”; it most likely requires action to mitigate losses and reestablish control over the unit.
Key Takeaways for Landlords
- Terminate lawfully – follow § 83.59(3)(d) before retaking possession after a tenant’s death.
- Secure the deposit – handle the security deposit under § 83.49, giving timely notice of claims.
- File probate claims – pursue accrued rent and damages as creditor claims under § 733.702.
- Be realistic – recognize that early termination fees may be denied by the courts.
- Document everything – keep clear records of rent ledgers, communications, and damages.
- Seek legal counsel – having an attorney advise you properly in your landlord business can help reduce your liability and ultimately save you money.
Conclusion
The death of the last remaining tenant creates a difficult situation for landlords, balancing compassion with business obligations. Florida law allows landlords to recover accrued rent, damages, and proper claims on the security deposit. Landlords should approach each case carefully, assert valid claims, and consult legal counsel where necessary. Strictly following statutory framework ensures you remain compliant and maximize your chances of recovery.