16 Oct What to do if your tenant dies
While it is not the happiest of topics the death of a tenant is a situation you may have to face as a landlord. Fortunately, as is often the case with residential tenancies, legislation in most states makes provisions for such an event. Given the circumstances it does not need to be said that these legal guidelines should be tempered with flexibility and compassion. The death of a tenant is a time for careful communication and a bit of give and take.
It’s important to note the death of the tenant does not terminate the lease. You are entitled to have rent paid (from the bond or the estate) until the lease is terminated and regain the property in the it was in at the start of lease, with fair wear and tear excepted.
There are slight differences in protocol if the tenant rented the property (sole tenant) or if they shared the lease.
The tenancy can simply continue but in most states the remaining tenants are under no compunction to do so. If the lease does continue, the remaining tenants become ‘the only tenants’ responsible for all matters. This means they can’t blame arrears or property damage on the deceased tenant.
The key steps to be taken are:
1. Terminate the tenancy;
2. Deal with the bond;
3. Ensure the property is ready to be reletted.
Hopefully you can finalise matters with the assistance of your tenant’s next of kin who can sign off on behalf of the deceased. The next of kin is responsible for rent and for providing vacant possession. This means they should deal with the tenant’s belongings and the cleaning of the property. This also applies if the death occurred at the property and requires specialist cleaning. You are entitled to access the bond as you normally would. Any remaining bond becomes part of the tenant’s estate. If there is no next of kin, you should seek advice from your state’s Residential Tenancy Service or Consumer Affairs Department.
If you have landlord insurance you should contact the company as soon as you become aware of the situation. The policy may need to be used to help with expenses. If you do not have landlord insurance you may be able to make a claim against the estate of the deceased if expenses exceed the bond (this will require legal advice).
The coverage offered by a landlord insurance provider in the situation of the death of a tenant is good criteria on which to judge policies. You need a policy that will cover loss of rent for a potentially long time and one that will cover cleaning expenses if the next of kin are unable to do so.
Lastly, there is a longer-term matter you as the landlord must keep in mind. That is your duty of disclosure to prospective tenants. Did the tenant pass away in the premises? Was the cause of death a murder or suicide? This information is said to have ‘material significance’ in the decision making process of the prospective tenant. You do not have to automatically disclose this information to prospective tenants – but you do if they ask. Failure to do so could provide grounds for the incoming tenant to successfully apply for early termination of the lease.
The tenancy ends when one of the following happens:
Two weeks after the deceased’s representative gives Form 13 Notice of Intention to Leave on the grounds of the tenant’s death;
Two weeks after that the landlord gives the deceased’s representative a Form 12 Notice to Leave on the grounds of the tenant’s death both parties agree on a termination date
the lease is terminated on the date decided by Tribunal after an application is lodged by the landlord;
If none of the above occurs the tenancy is deemed to have ended 1 month after the tenant’s death (this applies to both fixed and periodic agreements).
New South Wales
Either the landlord or the deceased’s representative may give a termination notice to the other party. The termination date may be before the expiry date of the lease the tenant’s representative may give vacant possession at any time before this date and the deceased’s estate is not liable to pay any rent after vacant possession is given.
The tenancy terminates at the earliest of the following dates:
28 days after the landlord has been given written notice of the death of the tenancy by the legal personal representative;
28 days after the landlord has given a notice to vacate to the tenant’s representative;
The date agreed in writing between the parties;
The termination date set by Tribunal upon application by the landlord.
South Australia, Western Australia, and Tasmania
The Act makes no specific reference to protocols on the death of a tenant. This leaves the landlord with two courses of action:
1. Reach an agreed termination date with the deceased’s representative.
2. Seek advice from Consumer Affairs or the Department of Commerce (WA).