Death is not something any of us likes to think about. Unfortunately, though, none of us are going to get out of here alive. I know this is not the most uplifting topic, but as landlords and business owners, we need to not only be prepared in the case of our own departure, but we also need to be prepared and know what to do in case one of our tenants should pass away.
While this article contains some general principles that I think can apply anywhere, I do work and am most familiar with Tennessee law. Please be aware that your state laws could vary, so do become familiar with them.
Who Has Possession?
When a tenant passes away, the landlord needs to remember the legal concept of possession.
You as the landlord gave the tenant possession of your property in return for the specified terms in your lease. Your tenant’s death (unless your state specifically allows it) does not automatically return possession of the apartment to you.
Think of it this way: your tenant likely had a TV in their living room. That TV was in their possession. Can you now just go in and take the TV because they have died? No. And you likely cannot do it with the property, either. Possession is now likely in the hands of the deceased’s estate.
So What Should a Landlord Do?
First, I would say that you should be very careful and tactful. After all, a tragic event has occurred. Have some sympathy for the deceased and if they are in contact with you, their friends and/or family.
Second, you need to make sure that your property is secured and hazard free. Here in Tennessee, our landlord/tenant laws specifically grant the landlord the right to enter a property if a tenant is “deceased, incapacitated or incarcerated.” I also believe a landlord could justifiably utilize the emergency provisions of the law to legally enter the property.
Death is after all usually a “sudden, generally unexpected occurrence.” But you need to tread carefully here. Remember that you technically do not have possession, and this can create problems later on down the road if you are not careful.
Here is why. Families can do very strange things when someone dies and they are grieving. They may not be thinking rationally, or they may be misinformed. Further, when an estate and/or money is in the picture, people can get downright greedy and mean. I have seen more than one family split up over money, and that is not something you want to get involved in.
So yes, enter the property. Make sure the doors and windows are locked. Make sure the heat is on in the winter. See to it that pets are taken care of. Other than that, do not touch anything unless you absolutely have to in order to secure the property. Further, take someone with you as a witness — or at the very least, use your smartphone to take a video of your entry.
Why? To cover your butt, that’s why. The last thing you need is some friend or family member coming along and accusing you of stealing something. Can’t you just hear the grieving mother say, “Well, you were the only one who has been in there. Where is her grandmother’s diamond ring?”
So make sure your property is safe and secure, but for now, leave everything else alone.
Getting Possession Back
Your next concern after making sure the property is secure is getting it back into a cashflowing position. After all, you likely have a mortgage, and you definitely have various other expenses associated with the property.
Here again, tread carefully, especially if there is family involved.
Most families are going to be understanding of your position. They realize you want to get your property back and get it re-rented. But you need to realize that this may be a very difficult process for them. A mom might have to go through her child’s things or vice versa. Work with the family. Give them some time and be gracious.
How much time? That is up to you. I would at least allow them to get the funeral and associated affairs cleared up before beginning to ask them about clearing out the property. Every one of these situations will be different, and you will just have to judge each one. Of course, if they need more time, they can always pay the rent. Let them know that option is available.
Once the property is cleared and cleaned to your satisfaction, ask the next of kin to sign a “release to the rights of possession” form. Once that is completed, you are then in pretty good shape at that point to go ahead and re-rent the property.
But what if no one shows up to claim the estate? What do you do then?
First, you need to realize there is always a next of kin; they just may not be aware of it. And you never know if or when they might show up. They could show up several years from now looking for their relative’s diamond ring. So again you need to protect yourself and gain possession legally by using either the eviction or abandonment provisions of your local landlord/tenant laws.
Obviously, if the tenant has passed, they will not be paying the rent. So you could file for eviction and regain possession that way. I think that this is a rather messy and expensive process. I would prefer to use the abandonment provisions.
Here in Tennessee, simply wait fifteen days until after the rent is past due. Then, post a notice of abandonment (I know it is a bit silly, but we are trying to cover our butts here), and 10 days later you can go in and clean out and prepare it for re-rental. It is fairly easy. The only catch is you have to store possessions found in the property for 30 days. But if after that time no comes looking for them, they are yours to do with as you please.
The death of a tenant can raise some tricky family and legal issues. You as a landlord have to be prepared for such an event since people die everyday. Be sure you are protecting yourself by following your local laws, and remember that a little kindness in these types of situations can go a long way.
Ever have a tenant pass away? How did you handle this situation?
Let me know with your comments.
Note By BiggerPockets: These are opinions written by the author and do not necessarily represent the opinions of BiggerPockets.