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Jazmin Perry

Dispute resolution

It is possible that landlords may find themselves in a position where their tenant has unfortunately passed away, but the death of the tenant does not automatically bring the tenancy to an end. 

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As the tenancy continues, the tenant’s estate will be liable to pay the rent (and other amounts due under the terms of the tenancy), and likewise, rules such as the landlord providing sufficient notice to access the property, still apply.  

When a tenant passes away, the first thing to ascertain is who has the legal authority to act on their behalf.  Who that person will be depends on whether the tenant left a will.  If so, the landlord can deal with the executor named in it.  If the tenant did not leave a will or there was a will but no executor, the tenancy is transferred temporarily to the Public Trustee.  Unless someone informs the landlord that have the necessary authority, the landlord should ask the Public Trustee if they are acting.  Whichever way this works out, the landlord should ensure to obtain proof of authority to act from the relevant person, before dealing with them in relation to the tenancy. 

Although technically the tenant could leave the remaining term of the tenancy to their beneficiaries in their will, in practice this seldom happens.  So, landlords should consider negotiating a surrender of the tenancy with the person who has authority, to allow the property to be re-let to new tenants.  Landlords may be reluctant to surrender the tenancy at first as doing so will mean they need to find a new tenant, however finalising the tenant’s estate can take significant time, and there may not be any money left in the estate to pay rent or arrears anyway by the end of that process.  Therefore, a surrender is usually the cleanest, most efficient and cost-effective way of ending the tenancy. 

If a surrender cannot be agreed and the tenancy is within its fixed term then the tenancy will pass to the tenant’s estate, and the landlord can serve a section 8 notice relying on ground 7 – death of an assured tenant to seek possession providing that possession proceedings have started no later than 12 months after the death of that tenant.  If the tenancy is periodic and a surrender cannot be agreed, then the tenancy will pass to the tenant’s estate and the landlord could serve a section 21 notice to end the tenancy, or a section 8 notice again relying on ground 7 – death of an assured tenant.

When the tenancy is brought to an end and depending on the circumstances, the landlord may wish to make a deduction from the tenant’s deposit.  The landlord should seek to agree deductions with the person with authority to deal with the tenant’s estate and if a surrender is agreed, a written deed of surrender which details how the deposit will be dealt with, should be completed.  If an agreement cannot be reached as to who should receive the deposit or how it should be shared, the landlord will have to look to make a court claim against the tenant’s estate or use the free dispute resolution service of the deposit protection scheme protecting that deposit, with the authorised person assuming the position of the tenant in that process.

It is important that the tenancy is dealt with correctly when a tenant passes away, and there are pitfalls to be aware of.  For instance, a landlord could deal with the person they believe has authority to act for the tenant and deduct monies from the deposit with that person’s agreement, but, if that was in fact not the person with proper authority, the landlord could be required to refund those amounts to the tenant’s estate.  There are undeniably commercial considerations that any landlords will have when deciding the route to take in a situation such as this, but officially a tenancy can only be ended by authorised surrender or with an order of the court.  Without either of these, and if the landlord were to simply take back possession, they would be taking a significant risk. 

We are therefore available to assist landlords who find themselves in this position, you can contact us at [email protected]

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

Get in touch

If you have any questions relating to this article or have any legal disputes you would like to discuss, please contact the Property team on [email protected]

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