Til death do us part - But AST isnt the end

Death isn’t something we like to think about or even talk about the majority of the time, but as landlords this is something we may need to deal with at some point.

Sadly, the probability of having to deal with this situation has increased with Covid-19 effecting so many people.

In my professional capacity, I have had to deal with over 12 deaths of tenants, occupants or residents in all types of situations, from suspicious deaths, murders, suicides to ill health and old age.
But the key facts remain the same and that is how to correctly deal with the death of your tenant.

We will, for the purpose of this article assume the tenant has passed from natural causes and has an Assured shorthold tenancy (AST).

There are 2 main scenarios for you as a landlord to work through and I will address each in turn, so let’s start with the easy one.

Scenario 1. Tenant passes away and there are Next of Kin ( NOK)

The important thing to remember is that under English law the AST does not end on death of the tenant, but remains an active tenancy accruing rent until it is legally ended.

The first thing  you must do is contact the NOK and find out if there is a Will and who the executor is, from this point onward it is best to communicate direct with the executor rather than the NOK.

Next, you need to arrange for the tenancy to be ended, this can be done in 4 ways.
• Notice to quit from the tenants estate
• You serve a S21
• You serve a S8 using mandatory ground 7
• Deed of surrender
Realistically options 1, 2 & 3 are the best because they will limit the liability for rent owed and allow a practical timeline for you to get the property back in your possession.

Rent & Rent arrears
While the tenancy is active rent will continue to be due, the liability for this rent rests with the tenants estate until the AST is ended, this is why it is in everyone’s best interests to end the tenancy as quickly as possible, to minimise the estates liability, but also to minimise the debt owed to you, in case the tenant has little or no value in their estate.

Security deposit
At the start of the majority of tenancies, a security deposit will be taken and registered with one of the 3 deposit schemes, this deposit remains the tenants money at all times, or in this situation, it remains the money of the tenants estate and must be returned to the estate accordingly.
You will need to process the deposit in exactly the same way as if the tenant were still alive, so carrying out a check out inspection and requesting deductions for any damage or dilapidations or of course rent arrears.
This is another key reason why you need to have opened communication with the executor early on in the process, as it is likely NOK may not want to discuss or accept any deductions you may wish to make from the deposit.

Clearing the property of possessions
This can sometimes be a delicate situation to have to approach with grieving relatives. The fact that you need the property emptied so you can relet balances with the family’s  time to grieve and prolong a heartbreaking task.
As a guide I would suggest following local authority and housing associations protocol and giving the family 14 days to visit the property take what they wish and surrender the property back to you.
This will need to be communicated with the Executor of the Will incase there are any specific items that are addressed in the Will and need to be dealt with in a certain way.

Possession left behind
Once the family have visited the property and collected everything they wish, there maybe a number of items left that belonged to the tenant that the family do not want to take.
You cannot just throw these out.
You, as the landlord are still bound by Tort law to safeguard those possession and only dispose of them when you have permission or a set time frame has passed.
The law in this case is Torts (interference with goods) Act 1977, which explains that you must serve a Torts Notice on the tenants estate explaining that you will give them a set period of time to remove the good or you will then dispose of them.
If you get a letter directly from the Estate stating that the remaining possessions can be disposed of, then there is no need for the Torts Notice.

Scenario 2- No next of kin or Will
This scenario is not as unusual as you may think, as a society we are more disconnected than ever with many people living alone without immediate family.

So if a tenant passes away and have no NOK, this is known as Intestate, in this situation the local court of where the person died will appoint an administrator.
It is important to note, that it will be the court closest to where a person died rather than a court closest to where a person lived, this is important to note if a tenant dies outside of the home, may be on holiday or in a hospital miles away from the property.

If you do not know who the court administrator is, you can contact your local court and ask for the Pubic Trustee, who will be able to locate the administrator for your tenant and for which court you need to liaise.

All of the other points I raised in scenario 1 still apply, the tenancy will need to be ended and the administrator advised of rent due.
The court administrator cannot end the tenancy with a Notice to quit and if the tenancy has migrated to a periodic then your only resolution is to serve a S21 on the court administrator as the tenants representative and a copy to the property.

There is a slight difference with regards to possessions left in the property, as there is not NOK, you as the landlord automatically become an Involuntary Bailee and you have no legal right to dispose of any of the tenants possessions.
In this instance you must serve the Torts Notice on the court administrator and follow the Torts process to the end in reappear of removing any of the deceased tenants items.