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What happens to a tenancy when the tenant dies?

gravesThere is often a lot of confusion and misunderstanding about this.

First off – a tenancy does not end when the tenant dies.  What happens depends on the circumstances.

If the tenancy is in joint names then the living tenant will acquire the deceased tenant’s share by what is known as the ‘right of survivorship’.  So if a husband and wife rent a property jointly and the husband dies, it will then belong just to the wife.

If there is only one ‘sole tenant‘ then what happens depends on what sort of tenancy it is.

  • If the tenancy is still within its fixed term, then the remainder of the fixed term is a property right, the ownership of which will pass to the deceased tenant’s Personal Representatives* as part of the tenant’s ‘estate’ (i.e. everything he owns when he dies)
  • If the tenancy is a periodic ‘statutory’ tenancy under the Rent Act 1977, then the tenancy will pass either to the spouse (if there is one living) or in some circumstances to a member of the tenants family living at the property at the time of death (for full details see the act)
  • If the tenancy is a periodic assured tenancy under the Housing Act 1988 then it will normally pass to the spouse (if any).  This will also happen with an assured shorthold tenancy, but here the landlord can easily end it by serving a section 21 notice (again, for full details, see the act)
  • If there is no-one eligible to succeed to the tenancy under the ‘succession’ provisions of the Rent Act 1977 or the Housing Act 1988, then the tenancy will, as with a fixed term tenancy, pass to the tenant’s Personal Representatives as part of his estate.

So what rights and obligations do the personal representatives have?

Basically the same as the tenant’s were.  So if there are rent arrears due to the landlord, these will have to be paid from the estate before any money or assets can be given to beneficiaries under the tenant’s will or intestacy.

However note that the Personal Representatives are not liable themselves, in their personal capacity, for any money.  So if a tenant, Fred, dies with no assets and owing £2,000 rent arrears, the landlord will get nothing.

He can’t expect, for example, Fred’s sole surviving niece, Alice, to sell her own house to pay off her uncle’s debt.  Its not her debt.

If Fred died with money in the bank and other assets however, then Alice may lose her inheritance as the £2,000 rent will have to be paid to the landlord before she can take anything.

It is important to realise, particularly if there are any assets in the tenant’s estate, that the tenancy will not necessarily be ended just by telling the landlord that the tenant has died and handing the keys back.

Where, for example, the fixed term has not yet ended, then rent will still fall due on a month by month (or for a weekly tenancy, week by week) basis.  Although in the Fred / Alice scenario, I see no reason why Alice could not move in for the remainder of the fixed term if she pays the rent.

Normally however the landlord will agree to take the property back, even if the fixed term still has a while to run, as they will want to re-let.

If the tenancy is a periodic one, then the Personal Representatives will be able to serve a notice to quit on the landlord and end the tenancy that way.

How can the landlord end the tenancy on the death of the tenant?

What usually happens if that the landlord will want to take the property back and re-let it.  However he does not have the right to just do this, unless this is with agreement with the tenant’s Personal Representatives.

To formally end the tenancy, if it is a periodic one, he will need to serve notice on the Personal Representatives, and then, if they don’t agree to give up possession, or if there is someone else living at the property, obtain a possession order through the courts.

  • For an AST he should serve a section 21 notice.
  • For an assured tenancy he will be able to serve a section 8 notice citing ground 7.
  • For a common law / unregulated tenancy he should serve a Notice to Quit.

If the tenancy is a fixed term one, he will have no special right to end the tenancy unless the rent is not being paid, in which case he will have the usual  ground 8 route (or will be able to forfeit for non payment of rent if it is an unregulated tenancy).

What happens if there are no personal representatives?

If the tenant has no friends or relatives and there is no-one able to deal with the administration of his estate after his death, then an official called ‘The Official Solicitor and Public Trustee’ has the authority to deal with this.

There is a (rather uninformative) website here.

So for example if the landlord wants to serve a notice, he will be able to serve it on the Official Trustee.

In conclusion

I suspect in most cases, the landlord just takes the property back, in agreement with the tenants family.  In most cases this will be the most sensible way to proceed.

However if there is no agreement, it is as well to know what the rules are.

* ‘Personal Representatives’ includes both the executors under a will and administrators appointed when the person dies intestate (i.e. without having made a will).

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Important note. If you are reading an old post, remember that the law may have changed since it was written.

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11 Responses to What happens to a tenancy when the tenant dies?

  1. Good summary of the leagal principles but in practice it’s rarely that simple and this is one of the hardest parts of my job.

    LHA stops and bank accounts are closed upon death.
    Tenants don’t always die with everything neatly arranged. If they die intestate and/or without any next of kin there will be no one to deal with the estate and chattels and no one to negotiate with to end the tenancy. Landlords can have a long wait to get their property back and often have to wait for NHS bereavement team, local authoirty commerical team, police, coroner etc., to go in and do their investigations.

    More often than not there is little or no money in the estate and no one is too keen to take responsibity for removing the tenant’s belongings, other than personal documents to help the search for a next of kin so the local authority don’t have to pay for the welfare funeral.

    If there is money in the esate you have to wait for treasury solicitors to deal with everything and they are not exactly quick off the mark. You also have to wait for the local authority to get their cut first after paying for the welfare funeral.

    If a next of kin is eventually found they have to apply for Letters of Admininistration and probate.

    You often have the unenviable task of convincing them a tenancy doesn’t end on death of their beloved and that even though they are dead the landlord insists on the rent being paid. Or they argue there is no money in the estate. Try proving the opposite….

    In the end the landlord/agent usualy has to end up taking a risky commercial decison on ending the tenancy, removing belongings and distributing the deposit without clear authority.

  2. Thank you very much Jamie for giving the practical aspects. My post was really just looking at the legal side of things so your input is really helpful.

    I have been wondering whether, if there is no PR to deal, the landlord might be protected in some way under the doctine of implied surrender. As he clearly cannot be expected to hang around for ever waiting for a PR to turn up. As an idea thought it needs a bit of work …

  3. Ending the tenancy is usually the least risky part.

    The hard bit is deciding when and how to dispose of their belongings. What if you find potentially valuable or personal items? The local authority should have removed anything important like passports etc. but not always. What if a next of kin comes out of the woodwork and wants something you have disposed of?

    The other hard part is getting money out of an estate when the next of kin tells you there is none but you have other ideas.

  4. Yes, exactly. Which means that if the agreement is silent on abandoned goods, the landlord is expected to take inventory and store the goods for three months, even if they are worthless and he is unlikely to see any of those costs back again.

  5. What if the personal representatives used the little money left to for a big funeral rather than the rent the deceased tenant owned?

  6. Ian – Again there would be the issue of establishing this has happened and what constitutes ‘big’ or ‘excessive’ in this context. There may be cultural or religious issues involved. Accusing a bereaved family of deliberately wasting money on funeral arrangements, even a funeral wake is going to look bad at the very least and difficult to prove.

  7. I suspect that if the PRs have splashed out on an expensive funeral instead of paying the debts of the estate, this could make them personally liable to make up any shortfall.

    But we need a probate solicitor to put us right here!

    • PRs have a responsibility to pay reasonable funeral costs out of the estate if there are sufficient funds available. What constitutes reasonable funeral expenses will depend on the individual circumstances. If personal representatives are aware of the rent due before authorising payment of the funeral and deliberately agree to an extravagant send off they could be personally liable.If they act innocently they may be granted relief from liability at the discretion of the court.

  8. But what if they don’t know about the debts of the estate at the time. (That’s the defense I would be using if I was them)

  9. Hi, I feel the property should be pass to landlord without going through to the court, if the tenant has no family living in the property.



About the post author:

Tessa Shepperson

Tessa is a lawyer and specialises in creating products and services which help landlords and letting agents learn and understand landlord & tenant law. For example, she runs the Landlord Law website (now in its 14th year) and is a director of Easy Law Training Ltd and Your Law Store. Tessa also sits on the Property Redress Scheme Council. When not working she enjoys reading, cooking and messing around on the computer. You can also find her on Google

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