Tenant Death
Proceeding Correctly When the Last Remaining Tenant Dies
Your Tenant passed away over the weekend, relatives show up at your door and want In. Maybe, nobody shows up and you can't contact anyone. It's going to happen and how you proceed can have serious consequences. What's next? When can you take possession?
⚠️ Critical: While we highly recommend you contact us the moment the last remaining Tenant in a rental unit dies, knowing how you will eventually proceed is crucial. In the situation where there is another person on the lease and they are still alive, normally you will not need to do anything but issues do indeed pop up.
The Law
Florida Statutes 83.59 defines when a Landlord has the right of possession of the property. The Landlord has the right of possession after an eviction has been completed, when a Tenant surrenders the premises and when the unit has been abandoned. The law defines abandonment:
FS 83.59 (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 the name and address of a personal representative. This paragraph shall 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.
The Mechanics of the Tenant Death
Under the law if the following is in place, the unit is considered abandoned.
- The last remaining Tenant is deceased
- Rent is unpaid
- At least 60 days have elapsed since death
- The Landlord has not been notified in writing that there is an estate opened or that a personal representative has been appointed.
Why Do We Need to Wait 60 Days?
While it would have been ideal if this time period was shorter, it takes time for an estate to be opened, and this allows the relatives the time to hire an attorney and effectuate this if they intend to do so, and time for the Landlord to be notified. Most of the time an estate will NOT be opened. This is indeed a hassle.
Now What About the Abandoned Property?
Getting possession of the unit is indeed the Landlord's primary goal, but now we still have abandoned property left behind; FS 83.67, sets out when and how abandoned property can be removed. FS 83.67 allows the removal of personal property if the Landlord takes possession of the unit by "recovery of possession of the dwelling unit due to the death of the last remaining Tenant in accordance with 83.59(3) (d)". As you can see, now both these statutes tie in nicely to allow for the unit to be considered abandoned and allowing the Landlord to dispose of the abandoned property.
KEY TIPS TO KNOW
- SOMETIMES YOU SHOULD CHANGE THE LOCKS IF YOU THINK SOME OTHER PERSON HAS A KEY AND SHOULD NOT BE GOING INTO THE PREMISES OR IS STEALING. CHECK WITH OUR OFFICE.
- A DURABLE POWER OF ATTORNEY OR ANY POWER OF ATTORNEY HELD BY SOMEONE HAS NO MEANING. THE POWER OF ATTORNEY DIES AND HAS NO MORE MEANING WHEN THE TENANT DIES.
- AN EMERGENCY CONTACT HAS NO MEANING WHEN IT COMES TO ACCESS.
- A RELATIVE HAS NO RIGHTS TO ACCESS OR POSSESSION OF THE PERSONAL PROPERTY OR THE UNIT.
- HAVE A LICENSED AND INSURED HAZMAT REMEDIATOR CLEAN THE UNIT IF THIS IS NECESSARY, DISPOSING ONLY ITEMS THAT MUST BE DISPOSED OF. THEY SHOULD DOCUMENT EVERYTHING THAT IS DISPOSED OF.
- IF A PERSONAL REPRESENTATIVE, A/K/A EXECUTOR IS APPOINTED CALL US ASAP
IF THE TENANT WAS THE ONLY PERSON LIVING IN THE RENTAL AND DIES, STRICT PROCEDURES MUST BE FOLLOWED.
A FINAL REVIEW AGAIN
- A RELATIVE OR FRIEND CANNOT BE GIVEN ACCESS.
- A RELATIVE OR FRIEND HAS NO LEGAL POWER TO DIRECT YOU TO DISPOSE OF THE PERSONAL BELONGINGS.
- A "WILL" HAS ZERO MEANING AND A "POWER OF ATTORNEY" DIES AND IS USELESS ONCE THE TENANT DIES.
IF A PERSONAL REPRESENTATIVE IS APPOINTED BY THE COURTS, YOU CAN DEAL WITH THE PERSONAL REPRESENTATIVE AS IF YOU WERE DEALING WITH THE TENANT HAD THE TENANT BEEN ALIVE. THE WORDS "PERSONAL REPRESENTATIVE" AND "EXECUTOR" MEAN THE SAME THING.
IF NO PERSONAL REPRESENTATIVE IS APPOINTED BY THE COURTS, THEN 60 DAYS AFTER THE DATE OF DEATH YOU CAN HAVE THE PREMISES BACK AND YOU CAN DISPOSE OF ALL PERSONAL PROPERTY.
IF A PERSONAL REPRESENTATIVE IS APPOINTED BY THE COURTS, YOU WILL DEAL DIRECTLY WITH THE PERSONAL REPRESENTATIVE.
IF THE TENANT DIED IN THE RENTAL AND DECOMPOSITION OCCURRED, YOU CAN HIRE A LICENSED AND INSURED BIOHAZARD REMEDIATOR AND THEY CAN ONLY DISPOSE OF PERSONAL PROPERTY THAT IS CONTAMINATED.
IF YOU INSPECT THE PREMISES AND EVERYTHING HAPPENS TO BE GONE, PLEASE CALL OUR OFFICE IMMEDIATELY AS YOU MAY BE ABLE TO TAKE A CHANCE AND GET POSSESSION PRIOR TO THE 60 DAY EXPIRATION DATE. SINCE A PROPERTY MANAGER OR A LANDLORD WILL NOT HAVE TO DEAL WITH THIS SITUATION ON A REGULAR BASIS, WE RECOMMEND THAT UPON A TENANT'S DEATH, WE ARE CONTACTED TO MAKE SURE ALL THE STEPS HAVE BEEN FOLLOWED. AS THE STATUTE INDICATES, SOME FEDERALLY GOVERNED PROGRAMS ARE EXCLUDED, AND LEGAL ADVICE IS ALWAYS RECOMMENDED TO AVOID A POTENTIALLY EXPENSIVE MISTAKE.
Watch: Death of the Tenant
Watch: Quick Tip — Resident Death
Need immediate guidance on a tenant death situation? Contact the Law Offices of Heist, Weisse & Wolk at info@evict.com or 1-800-253-8428.
