Termination of Tenancies Upon Death of a Resident

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TERMINATION OF TENANCIES UPON DEATH OF A RESIDENT  

By Daniel G. Drake, Esq.
© 2012

Section 83.59(3)(d), Florida Statutes provides that:

(d)  When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.

Essentially what the above means is that a landlord, upon notice or discovery of a tenant’s death, cannot dispose of a deceased tenant's belongings that remain in an apartment, or retake possession of the apartment, until at least 60-days after the tenant’s death. Furthermore, a landlord may not, in any circumstance, give a key to or open the apartment to anyone who is (a) not a legal lease holder or (b) who does not have an appropriate order from the local probate court, specifically, an Order Appointing Personal Representative naming the individual as the representative of the deceased tenant's estate and Letters or Administration. The foregoing restrictions apply only to a deceased tenant who lives alone. If there is another person on the lease or properly occupying the deceased tenant’s apartment, then the landlord essentially has no standing or obligation to interfere with such other person’s possession of the apartment or its contents.

Several apartment communities utilize a form that designates a third party to take custody of the tenant’s property in the event of the tenant’s death. Assuming that such document is properly written, we believe it is proper to let the designated person take possession of the deceased tenant’s property and remove it from the apartment. Of course, the designated person’s custody of the deceased tenant’s property would be subject to probate and other laws; nonetheless, the duty to comply with such laws is effectively moved from the landlord to the deceased tenant’s designated person through the use of such a form.

We always recommend, upon learning that a tenant has passed away and after confirming that no one else has a right to enter the deceased tenant’s apartment, that the manager and/or landlord’s representative take extensive photographs of the apartment, with a witness present, to catalog the contents. The witness is used to help prevent and/or defend against accusations of theft against the landlord.  

If rent remains unpaid and no one comes to the apartment with the authority to remove the items inside, or no one comes forward with the appropriate court order, and a period of 60-days has passed, if and only if your lease has the proper statutory language with regard to abandoned property can the landlord dispose of the items left in the apartment.  

After the landlord re-takes possession of the apartment, the landlord will make a claim against the security deposit, following the same procedure as any tenant who has left the premises at the end of their lease term, for any damages to the apartment as well as any unpaid rent. If the 60-day period passed and no one came forward with the appropriate order as delineated above, the landlord would be entitled to charge against the security deposit all the rent that accrued during that 60-day period. Any refund that may be due to the deceased would be processed the same as any other security deposit and sent to the last known address of the decedent. If the landlord has an individual who indicates they are the deceased’s personal representative and who (a) has the appropriate order appointing them as the such, and they provide you with a copy of the order, (b) empties out the apartment and (c) returns keys to you, the claim against the deposit would be only for any damages to the unit and any unpaid rent through the date the keys are returned to the landlord. Any refund in this circumstance would be payable to the Estate of the tenant, i.e., "the Estate of John Smith" (tenant was named John Smith) and would be sent to the personal representative as listed on the order (the order should have an address on it of the personal representative and/or the attorney who drafted the paperwork).

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The foregoing information is not intended to be, and it should not be considered a substitute for, professional legal advice or services when the need arises. Each situation has its own peculiarities and laws frequently change.  Therefore, you should always seek the advice of legal counsel when a legal matter arises.