When tenant dies, next of kin have rights

Tips on handling deposit, unpaid rent, lease termination

EDITOR’S NOTE: This story has been updated since its original publish date. The sentence which formerly said the responsibility for contracts and commitments generally falls on the next of kin, has been modifed to say that this responsibility falls on the deceased’s estate, which generally is handled by the next of kin. Thanks to readers who pointed this out. 

Q: My mother rented the same place for 40 years and recently passed away. Where are my responsibilities as next of kin? What are my rights to the place?

A: When a resident passes away, the responsibility for any contracts and commitments falls on the deceased’s estate, which generally is handled by the next of kin, such as spouse, child or parent. As for your rights, that’s a bit more complicated.

Start by contacting the landlord and informing him or her of the circumstances. If you’re not sure how to reach the landlord, a copy of the lease should have the information listed, or a cancelled check can provide the payee’s name.

If that isn’t available, ask another tenant in the building for the information. In some areas, buildings with six units or more should have the contact information posted over the mailbox or in a common area. If that comes up blank, public record should list the name and responsible party for the property, including the mailing address required for property tax receipt. Most counties have a property database to which most real estate professionals have computer access.

Once you’ve contacted the landlord, the key is to communicate. Give 30-day written notice that includes where and how to reach you via mailing address and telephone, if possible. It is best to send the letter by certified mail, or ask for a receipt if delivered in person. Always keep a copy of all correspondence.

If tenancy-related paperwork such as lease documents cannot be found, request the latest lease or rental agreement from the landlord. The lease should outline important details. In some states, such as California, tenants are allowed to request a copy of the lease on an annual basis.

If rent is due, 30 days is usually the limit for commitment. The estate pays bills and expenses, including rent. Was the rent paid already for that month? If so, you have a cushion of time to work with. In addition, some leases contain a "last month’s rent" provision, which allows monies deposited at move-in to be applied toward the last month. What if the rent has gone up since the lease was written?

Generally, "last month’s rent" in a written agreement means just that. Unless a clause spells out details about keeping up with current rent, chances are the monies can be applied at face value. Some leases refer to all or part of the security deposit as "last month’s rent." In that case, deposit monies may be applied as the contract implies. Newer leases often specifically prohibit security deposits to be applied to rent, so read the fine print carefully.

What if the lease expired long ago? Once again, read the fine print. Most leases roll over into a month-to-month contract even after the original expiration date. The contract continues to be in effect until a qualified party gives proper written notice, usually based on rent intervals until that the tenancy is over.

Do you have the right to keep the unit for yourself or another family member? That question has been hotly debated across the country, especially in rent-controlled jurisdictions. Generally speaking, you cannot move into a rent-controlled unit and take over, even if you are a close relative. According to attorney Janet Portman, author of "Every Tenants Legal Guide," "unless the tenant lived in the unit with family members (or a registered domestic partner) the tenancy will end at the tenant’s death." Localities with rent control have their own definitions of close family or caretaker. In addition, the length of time that defines "lived in the unit" varies by locale.

Do you have the right to the security deposit? Certainly. The landlord cannot just keep the deposit. Like any move-out, security deposit disbursement laws are usually addressed under state law and honed by some cities. Since laws on security deposit usage have changed, the prevailing law applies. Any lease or rental contract provision, including pre-required cleaning fees, might not be allowed.

Deposit deductions are usually allowed to restore the unit "in the condition as when first rented, less normal wear and tear." In your case, wear and tear probably ended decades ago. As for any other common deposit deductions, be sure to remove all items, including trash, or charges for cleaning and unpaid rent may apply.

Hopefully, with consideration and mutual understanding between landlord and the responsible party for the unit, the transition will be less stressful and allow everyone to move on.

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