If a Tenant Dies What Can the Landlord Do About Emptying the Apartment?
When a Sole Tenant of a Rental Unit Dies the Tenancy Terminates 30 Days Later Regardless of Lease Terms. If a Spouse Was Residing With the Deceased Tenant Then the Spouse Has 30 Days to Choose to Assume and Continue the Tenancy Arrangement. Property of the Deceased Must Be Preserved For 30 Days.
A Helpful Guide On How to Determine the Rights and Duties and Responsibilities of a Landlord Following Death of a Tenant
In a situation where a tenant dies, and the tenant was the sole resident of the rental unit, the tenancy statutorily comes to an end thirty (30) days after the death regardless of any period of time that may remain on a lease, if any. This end to the tenancy occurs per section 91 of the Residential Tenancies Act 2006, S.O. 2006, Chapter 17 wherein it is stated:
91 (1) If a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant.
However, if the deceased tenant was living with a surviving spouse, and the surviving spouse was unlisted or unshown or for some reason absent from the lease or rental agreement, then the lease or rental agreement, as a tenancy arrangement, may be taken over by the surviving spouse if such a choice is selected within thirty (30) days following the death of the deceased tenant. Of course, where the surviving spouse was included upon the lease or rental agreement, then the need to choose to take over the lease or rental agreement is moot and unnecessary. The option for a surviving spouse to take over the tenancy arrangement, despite being unlisted or unshown within the tenancy arrangement between the landlord and the deceased spouse, is statutory as provided by section 3(1) of O. Reg. 516/06 as a regulation to the Residential Tenancies Act, 2006 which says:
3. (1) If a tenant of a rental unit dies and the rental unit is the principal residence of the spouse of that tenant, the spouse is included in the definition of “tenant” in subsection 2 (1) of the Act unless the spouse vacates the unit within the 30-day period described in subsection 91 (1) of the Act.
Accordingly, even if there is a lease with a tenant for a specified term, the lease terminates, as does a month-to-month arrangement, thirty (30) days following the death of the tenant. Of course, as above, if a spouse chooses to stay, then the lease or rental arrangement will continue in the name of the spouse. As the choice enabling the spouse to assume the lease or rental arrangement is statutory, the landlord must accept the spouse as a tenant regardless of financial capacity or any other concerns that might otherwise be reviewed in the situation of assessing a fresh tenancy.
Property of Deceased
Protect Assets and Provide Access
When a landlord becomes aware of the death of a tenant, and the deceased tenant was the sole tenant of the rental unit, the landlord has a duty to preserve the property of the tenant for thirty (30) days, unless such property is unsafe or unhygienic; and accordingly, the landlord should take appropriate steps to secure the property from theft or other harm by ensure that all windows and doors to the rental unit are locked. Furthermore, the landlord may consider changing the locks so to make sure the home is secured against any friends or family members who may have keys to the unit. This duty to preserve the property of the tenant is found in section 91(2) of the Residential Tenancies Act, 2006 where it is stated:
(a) preserve any property of a tenant who has died that is in the rental unit or the residential complex other than property that is unsafe or unhygienic; and
(b) afford the executor or administrator of the tenant’s estate, or if there is no executor or administrator, a member of the tenant’s family reasonable access to the rental unit and the residential complex for the purpose of removing the tenant’s property.
If family members, or friends, of the deceased tenant seek to enter the rental unit, the landlord should carefully allow such so as to avoid potential disputes down the road by accompanying the family members, or friends, into the rental unit of the deceased. Additionally, the landlord should make a list of anything removed, such as clothes for the deceased or photos for a memorial service.
Once the landlord establishes communication with the Executor for the estate of the deceased, or another person who is legally acting for the estate, the landlord can surrender a key to the Executor and let the Executor manage further issues relating to the property of the deceased tenant.
Acquiring or Selling or Disposing
As above, the lease or tenancy arrangement ends thirty (30) days following the death of a tenant and during that period the landlord is responsible for protecting the property of the deceased. Once the thirty (30) day period is over, if any property of the deceased remains within the rental unit, being that the family, or legal representative, of the deceased failed to collect the property, then the landlord is free to manage the remaing belongings whereas:
- The landlord may sell the property and retain the funds raised;
- The landlord may acquire the property for own use; or
- The landlord may dispose of the property.
If the landlord sells the belongings, the landlord may keep any money from the sale to cover any unpaid rent or other expenses; however, if there is any monies remaining, and if a family member or the legal representative of the deceased claim the remaining money as assets for the estate of the deceased, and do so within six months following the date of death, then the landlord must provide such monies to the estate. Furthermore, if the landlord kept any property for own use, and a family member or the legal representative makes a claim to such property, the landlord must turn the property over as requested unless the landlord and the family member or legal representative agree to different terms about the property. For best protection of the landlord, it is always best that any such agreement be made in writing. These duties and rights regarding the acquiring, sale, or disposal, of property are prescribed within section 92 of the Residential Tenancies Act, 2006 which says:
92 (1) The landlord may sell, retain for the landlord’s own use or otherwise dispose of property of a tenant who has died that is in a rental unit and in the residential complex in which the rental unit is located,
(a) if the property is unsafe or unhygienic, immediately; and
(b) otherwise, after the tenancy is terminated under section 91.
(3) If, within six months after the tenant’s death, the executor or administrator of the estate of the tenant or, if there is no executor or administrator, a member of the tenant’s family claims any property of the tenant that the landlord has sold, the landlord shall pay to the estate the amount by which the proceeds of sale exceed the sum of,
(a) the landlord’s reasonable out-of-pocket expenses for moving, storing, securing or selling the property; and
(b) any arrears of rent.
(4) If, within the six-month period after the tenant’s death, the executor or administrator of the estate of the tenant or, if there is no executor or administrator, a member of the tenant’s family claims any property of the tenant that the landlord has retained for the landlord’s own use, the landlord shall return the property to the tenant’s estate.
(5) A landlord and the executor or administrator of a deceased tenant’s estate may agree to terms other than those set out in this section with regard to the termination of the tenancy and disposal of the tenant’s property.
Accordingly, after the thirty (30) days following death of the tenant, the landlord is, generally, free to do handle any property remaining within the rental unit as desired.
When a sole tenant of a rental unit dies during a tenancy, regardless of any period remaining on a lease, the lease statutorily terminates thirty (30) days later. If the tenancy was a month-to-month arrangement, similarly, the tenancy arrangement ends thirty (30) days later; however, if the rental unit was also occupied by a spouse of the deceased, then the spouse may assume the lease or month-to-month arrangement.
Furthermore, during the thirty (30) day period following death of a tenant, the landlord is responsible for preserving and protecting property of the tenant that remains within the rental unit unless a family member or Executor of the estate of the deceased takes of management of the property. After the thirty (30) days, if any property of the deceased remains within the rental unit, the landlord may treat the property as desired; but, may be required to return such property, or monies raised by sale, to a family member of Executor of the estate if claimed within six (6) months.