Occasionally, landlords may run into the situation when the last remaining tenant dies. Landlords are often at a loss for what to do in this situation for many reasons. This article will address the basic conditions that must be met for a landlord to terminate the lease upon the death of the last remaining tenant and to properly dispose of the deceased tenant’s personal property.
Terminating the Lease
F.S. 83.59(3)(d) provides that a landlord can terminate the lease upon the death of the last remaining tenant. It states,
When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.
In sum, the landlord can terminate the lease when:
- the last remaining tenant died,
- personal property remains in the unit,
- rent is unpaid,
- at least 60 days have passed after the death, and
- the landlord has not been notified in writing of a probate estate or the information of the personal representative.
Upon satisfaction of these conditions, the landlord can terminate the lease and take possession of the property. There are other methods of lease termination (e.g. abandonment), but the landlord should seek legal counsel regarding other methods of lease termination, because numerous legal issues are involved, and the landlord exposes himself to liability by mishandling the termination of the lease.
Keep in mind, this “death of last remaining” provision “does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.”
Releasing the Tenant’s Personal Property
One of the bigger questions landlords have is, what do I do with the deceased tenant’s property? Here are some basic rules of thumb, though not exhaustive of the issues and processes involved in this situation:
- Do not remove the tenant’s personal property before the lease has been legally terminated. When the least remaining tenant dies, that means making sure the above-referenced conditions have been satisfied or alternatively, making a determination that the tenant has “abandoned” the premises.
- Do not allow anyone to take the deceased tenant’s personal property until the lease has been terminated legally. Many times, family members will request access to the unit to get the deceased tenant’s property. Before you do that, you need consult an attorney, because you may expose yourself to liability by allowing someone, even a family member, to remove the property.
- Note: a “power of attorney” has no authority to do anything with the deceased tenant’s personal property. When the tenant dies, the power of attorney dies with him.
- Note: even if the lease has an “emergency contact”, that does not authorize you to allow that person to access the unit to remove personal property, but it is a good idea to have an emergency contact in the lease in case the tenant dies, and you need to reach out to the tenant’s contact person.
- If you discover that someone has been entering the unit (perhaps a friend of family member had keys to the unit), you should change the locks to ensure that no one enters into the unit. This way, the personal property is protected until such time as you legally terminate the lease and are able to dispose of the personal property.
- If the personal representative (that is, the administrator the court appoints to handle the decedent’s estate in a probate matter) contacts you about the tenant’s personal property, make sure you get a copy of the court’s order appointing that person as the administrator of the estate and get identification from that person to ensure they are the same.
During the period of time after the death of the last remaining tenant, landlords should seek legal advice to ensure they handling termination of the lease and the personal property legally.
The Lease Is Terminated – Now What Do I Do With the Personal Property?
It commonly happens that during the 60 day waiting period, no family member or estate administrator contacts the landlord to retrieve the tenant’s personal property. So, what does the landlord do now?
Once the landlord has legally terminates the lease, the landlord can remove the personal property pursuant to F.S. 83.67. That is,
- If the lease agreement has a “No Rights of Storage” provision, the landlord can dispose of the personal property without having to comply with the notice requirements under F.S. 715.104. The “No Rights of Storage” provision must be substantially the same as:
- BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY.
- But if the lease agreement does NOT have a “No Rights of Storage” provision, the landlord must comply with the notice and disposal requirements under F.S. 715.104, in which case, you should seek legal advice to ensure you are following the statutory provision properly.
Landlord Liability
Landlords should know that if the they remove the deceased tenants personal property prior to legally terminating the lease–or they allow someone who is not authorized by law to remove the tenant’s personal property, the landlord is subject to liability. F.S. 83.67(6) states,
A landlord who violates any provision of this section shall be liable to the tenant for actual and consequential damages or 3 months’ rent, whichever is greater, and costs, including attorney’s fees. Subsequent or repeated violations that are not contemporaneous with the initial violation shall be subject to separate awards of damages.
Conclusion
Landlords must ensure that they are terminating the lease legally and handling the personal property left in the unit legally. Seek legal advice to ensure you are doing these things properly.
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