DEATH OF THE TENANT
For many years, managers had to deal with a glitch in Florida law when the last remaining tenant died leaving personal property in the rental unit. Can the property be disposed of? Is the unit tied up forever? Can the unit be rerented? Suppose an estate is not opened? All these problem have been solved due to the passage of legislation which modifies Florida Statutes 83.59 and 83.67, the sections that define when a manager may take possession of the property and how to deal with abandoned property. NOTE – YOU MUST MAKE SURE YOUR LEASE IS UP TO DATE TO REFLECT THE NEW LAW SO IF YOU INHERIT A LEASE, LOOK AT IT.
The Old Law
To put it simply, there wasn’t any law that specifically addressed the tenant death/abandoned property situation. When a tenant died, if the family of the deceased were to have an estate opened up and a Personal Representative (in some states this is called an executor) were appointed, the manager could simply deal with the Personal Representative, agree that the unit was abandoned or surrendered, serve notices on the Personal Representative or actually file an eviction on the deceased tenant through the Personal Representative. While this seems simple enough, in most cases no estate was ever opened by the relatives of the deceased, and the manager was left with no real option but to hire an attorney at great expense and force open an estate, after which a Personal Representative would be appointed by the probate court.
Why Would the Relatives Usually Not Open Up An Estate?
Most people as they age begin to do some basic estate planning which usually includes placing any assets such as bank accounts and stocks in joint names with a relative. Upon death the money now belongs in full to the joint account holder(s) or to a beneficiary on the account. Upon death, this leaves the living relatives having to deal with personal property only, and there is no real benefit to or need by the relatives to open up an estate.
Would the Manager “Force Open An Estate”?
Most managers did not choose this route due to the time and expense, and simply placed the remaining items into storage and waited until they could not take it any longer. They then disposed of the property, always wondering and worrying if a relative would later appear claiming that the manager disposed of some valuable property which the relative was entitled to under a will or otherwise. This could have exposed the manager to serious liability and a major lawsuit. Fortunately, that worse case scenario rarely happened, since when the resident died, the relatives often descended on the rental unit, gained access somehow, took what they wanted and left, leaving unwanted personal property behind.
The CURRENT Law
Florida Statutes 83.59 defines when a manager has the right of possession of the property. The manager 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 new law adds to the definition of 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 manager 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 Resident Death
Under the new law if the following is in place, the unit is considered abandoned.
- The last remaining tenant is deceased
- Personal property remains on the premises
- Rent is unpaid
- At least 60 days have elapsed since death
- The manager 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 manager to be notified.
Now What About the Abandoned Property?
Getting possession of the unit is indeed the manager’s primary goal, but now we still have abandoned property left behind; prior to the new law, this was the main problem. This is dealt with in 83.67, which sets out when and how abandoned property can be removed. The amended 83.67 now allows the removal of personal property if the manager takes possession of the unit by “recovery of possession of the dwelling unit due to the death of the last remaining resident 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 manager to dispose of the abandoned property.
Some Final Thoughts
Since a manager will not have to deal with this situation on a regular basis, we recommend that upon a tenant death, the manager contact us 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.
NEW UPDATED WORDING FOR YOUR LEASE – note this is in most leases now
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 MANAGER SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT'S PERSONAL PROPERTY.
TIPS 1. CHANGE THE LOCKS IF YOU THINK SOME OTHER TENANT OR PERSON HAS A KEY. ITS IS A GOOD IDEA TO CHANGE THE LOCKS NO MATTER WHAT.
2. 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.
3. AN EMERGENCY CONTACT HAS NO MEANING WHEN IT COMES TO ACCESS.
4. A RELATIVE HAS NO RIGHTS TO ACCESS OR POSSESSION OF THE PERSONAL PROPERTY OR THE UNIT.
5. HAVE A LICENSED AND INSURED HAZMAT REMEDIATOR CLEAN THE UNIT IF THIS IS NECESSARY, DISPOSING ONLY ITEMS THAT MUST BE DISPOSED OF.
6. IF A PERSONAL REPRESENTATIVE A/K/A EXECUTOR IS APPOINTED CALL US ASAP
LAW OFFICES OF
HEIST, WEISSE & WOLK, P.A.
1 800 253 8428
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW