When the only remaining tenant on a lease dies, it raises issues and presents challenges. While a landlord’s reaction of how to approach this situation may seem logical, common–sense, reasonable and proper, it may also be illegal and costly.
Florida Statutes 83.59 and 83.67 sets out rules for how the landlord can re-take possession of the unit and how to handle the abandoned property. The good news is that a properly worded lease can help the landlord navigate the challenges due to the death of a tenant.
Landlords need to keep in mind that upon death of a tenant, the Landlord cannot immediately re-take and re-rent the property, dispose of the personal property, or grant access to anyone – even children or the sole heir – even if they can produce a Will. Additionally, powers of attorney are no longer valid.
So what’s a landlord to do to protect themselves from this event – which is becoming more common? For starters, make sure you lease contains the language set forth in Florida Statute 83.67.
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.
If your lease contains this above language and (a) The last remaining tenant is deceased and (b) rent remains unpaid, and (c) at least 60 days have elapsed following the date of death, and (d) the landlord has not been notified in writing by relatives, friends, the court etc…of the existence of a probate estate being opened or that a personal representative has been appointed, then after the 60 days have elapsed and you complied with the above steps, the unit is yours to re-take, re-rent and dispose of its contents as you see fit.
In the event a probate estate is being opened, a claim would have to be made in that probate proceeding for anything due under the lease. In that case Landlord should deal directly with the personal representative. The Landlord can also allow access to those that have court authorization through “letters of administration” and can evict or file other necessary motions by suing the estate through serving the personal representative.
While this overview gives the landlord direction on handling the death of a tenant, it is best before taking any action to call your attorney and let the attorney walk you through the process to avoid any costly mistakes.
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