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LANDLORD’S RIGHTS AND RESPONSIBILITIES UPON THE DEATH OF A LEGAL TENANT

Your tenant residing in your apartment has passed away....now what should you do as the landlord?
Written Mar 03, 2009, read 22649 times since then.

 


When a legal tenant dies, a landlord is often left wondering how to lawfully regain possession of the apartment and what to do with the tenant's belongings if no one comes forward to claim them.  For your information, a lease does not simply
terminate with the death of the tenant.  Instead, the lease remains in effect until its expiration unless the landlord takes legal action to terminate it and regain possession before the expiration date.  With years of experience in landlord/tenant matters, our office can assist you legally regain possession of the apartment so that it may be re-rented as well as collecting the rent despite the death of the legal tenant.

In cases where the landlord takes no action to regain possession, the leasehold interest automatically passes to the estate of the deceased tenant like personal property; it does not automatically revert back to the landlord.  The estate is then liable for the rental payments owed under that lease until its expiration.  Even though the lease passes to the estate, the executor or administrator (the person legally in charge of settling the estate of the decedent) does not have the power to simply transfer the interest or to allow anyone into possession of the apartment without the landlord's consent.  This is because a lease is not a property right that passes from generation to generation upon the leaseholder's death.

An executor or administrator may request that the landlord consent to the assignment of the lease or request that he/she be allowed to sublet the apartment to another person.  In this situation, the landlord has the option to consent or to refuse consent, however courts have held that any refusal of consent by the landlord must be reasonable.  If it's not, the Court can terminate the lease, discharge the estate from any further obligation to pay rent under the lease, and the landlord will then be able to re-rent the apartment.  What constitutes reasonableness depends on the terms of the lease and the facts and circumstances of each case.

Another option a landlord has at the death of a legal tenant is to take legal action to terminate the lease, instead of collecting rental payments from the estate.  In instances where no next-of-kin either exists or are readily obtainable, the landlord should contact the Public Administrator's Office before attempting to regain possession of the apartment.

The Public Administrator's office is responsible for the administration of estates of persons who die without a will, and leave no readily accessible next-of-kin.  It can assist a landlord in obtaining rental payments through the deceased tenant's estate and in settling the estate so that the landlord can eventually remove the deceased tenant's belongings and regain possession of the apartment.  In Westchester County, the Public Administrator's office is located at 140 Grand Street, Suite 905, White Plains, NY 10601.  George J. Lambert, serves as Public Administrator and can be reached at (914) 995-3700 for more information.

In cases where the decedent has readily accessible next-of-kin, issues may arise regarding the family member's rights to possession if the apartment is rent-regulated (subject to the Emergency Tenant Protection Act, "ETPA").  This is because in cases where a family member occupied an apartment at the same time as the deceased tenant, that family member may have a valid claim of succession rights to the apartment despite the absence of his or her name on the lease.  In order for a family member to be successful under a claim of succession rights, the family member would have to qualify as a family member under ETPA Regulations, the apartment would have to have been the family member's primary residence, and the family member would have to have occupied the apartment with the legal tenant for one or two years (depending on the circumstances) directly preceding the death of the legal tenant.  Our office can help you make a determination as to whether an individual would have a viable claim of succession rights to an apartment.

Often, the family member of the deceased tenant who is claiming possession lacks a valid basis for such claim.  Thus, it is important for the landlord to reject any rental payments made by the family member and to immediately consult with an attorney to consider the commencement of a legal action to remove the family member from possession in order to avoid creating a tenancy relationship.  Our office can assist a landlord in filing an action against the deceased tenant's estate to collect rent from the estate or to potentially remove the deceased tenant's family or friends from occupying the premises.  Our office can also assist a landlord in petitioning the Surrogate's Court to have a public administrator appointed on behalf of the estate if no estate representative exists so that the landlord will have someone to hold responsible for rental payments under the lease until the apartment is surrendered. 

If you need more information or have questions regarding the issue of regaining possession of an apartment after a legal tenant dies, please contact James G. Dibbini at (914) 965-1011 or email jdibbini@dibbinilaw.com.

Disclaimer:  The information provided is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered.

 

 

Learn more about the author, James Dibbini.

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Article tags

  • tenant
  • landlord
  • landlord tenant
  • yonkers city court
  • mount vernon
  • rent
  • court
  • death
  • lease
  • attorney
  • lawyer
  • dies
  • etpa
  • dhcr
  • holdover

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