What are Key Steps after Tenant Dies

[Shefali R.]

All - we just learnt from her mom that our tenant died yesterday. She lived at our property with her children. Wanted to understand what our responsibilities and next steps would be regarding 1. termination of lease 2. access to unit 3. receipt of rent 4. removal of tenants property and 5. anything else not occurring to me right now.  Property is in NJ. 

Thanks so much. 

[Kim Meredith Hampton]

@Shefali R. Here is some info from our attorney her in Florida, this may help:

Resident deaths are on the rise. Our aging population, natural deaths, suicides and homicides have resulted in more deaths than ever of residents. Ideally when a resident dies, the relatives would immediately hire an attorney and begin the process of opening up a probate estate. One main objective of a probate estate is to establish a person to administer the estate; this person is called a “personal representative” in Florida, and is often called an “executor” in other states. Both titles mean the same thing. When the court appoints this person, the property manager can deal directly with this person in the same way the property manager would deal with the resident when the resident was alive. Access to the unit can be granted to the personal representative, or if the personal representative fails to pay the rent or remove the personal belongings, the property manager can file an eviction against the estate of the deceased resident by suing the personal representative, who now “stands in the shoes” of the deceased resident.

Upon a resident’s death, legal matters enter a state of limbo. You cannot sue a deceased resident, you cannot evict a deceased resident, and most importantly, you cannot grant access to any relatives who often show up in a very distressed state asking for access. The person requesting access may claim to be the sole child or the sole heir of the deceased resident. The person may even claim there is a will that confirms this information. While this information may even be accurate, until a probate judge ratifies that person’s authority to take action on behalf of the estate, the property manager is unable to deal with that person legally. Not much is more disturbing or disconcerting than having angry, distressed relatives being told they cannot be given access to the apartment, but the bottom line is that they cannot. If the property manager gives access to someone that does not have the authority bestowed by the probate court to act on the estate’s behalf, another person claiming interest in the deceased resident’s personal property can appear later and file a huge lawsuit against the property manager, the property management company and the owner of the property. Knowing what to do upon a resident’s death is crucial, and the first person you should contact is your attorney. Do not panic, and do not begin a long dialogue with the distressed relatives.

Speaking with Relatives or Friends

You are not prohibited from speaking with relatives or friends that are attempting to deal with the situation, but they often will not like the information you are conveying. You need to firmly inform anyone seeking access about the need for a probate court order. The relatives or friends will immediately think that you are trying to cause them further grief or obstruct them. Since they do not know the law and often are suspicious, this is understandable. Sometimes, your attorney may be able to directly speak with a relative seeking access and calm that person down. However, your attorney cannot legally advise this individual, other than to point out the legal position you are forced to take, and that you are not trying to give anyone a hard time.

Resident Found in Unit

Often a resident is found deceased in the apartment by a friend, relative or staff member of the apartment community. The body is removed, and if possible, management should do everything in its power to notify family members if they are not already aware of the situation. This is one reason why it is crucial to have updated emergency contact information, not old information originally received years ago when the resident moved in. Read our article again on the importance of updated contact information, and see how you are shaping up. If you have not asked your current residents for updated information, do so immediately.

Crime Scenes

If law enforcement designates the area as a crime scene pending the determination and cause of death, no one should enter the unit, including any biohazard professionals, until law enforcement verifies in writing that the unit may be entered. Keep in close contact with law enforcement, as if they determine that no crime has been committed, they may not bother to tell you that the unit is cleared, leaving you unaware that you are able to move forward with normal procedures.

Biohazard Cleanup

Though an unpleasant subject, sometimes this becomes an issue. Do not attempt to take any shortcuts in this matter and put you or your maintenance staff at any health risk. The cleanup sometimes must occur immediately, but there are personal belongings in the unit which may or may not be of value. If the biohazard professional were to remove valuable items intentionally or by accident, liability could occur to management. Sometimes personal property must be removed from the unit; there is no choice. Furniture, clothing, drapes, bedding, and porous materials are the most common items that have to be removed immediately and properly disposed of. These items will often become permeated with liquids or even just odors forcing their removal from the unit. Demand that your biohazard professional videotape, photograph and document anything that is actually removed from the unit for disposal. Always use a professional biohazard removal company that is fully insured and bonded, and if you do not already have one in place, this is the time to shop around and look for a company that is available to you when or if the time comes. Prices for biohazard cleanup range significantly, so begin to look for companies that are used by other property management companies or apartment communities.

Neighboring Apartments

At times due to advanced decomposition, odors travel to adjoining apartments. Sometimes this is how a deceased resident is discovered. If you have an available unit for resident transfer, offer this immediately. If not, and a resident in an adjacent unit is complaining about lingering odors, we recommend you allow the resident to break the lease without penalty. This is done by providing the resident with a lease break letter under which the resident is given the option to vacate with no penalty.

Access by Friends and Relatives

You cannot grant access to a third party absent a court order. You must advise the relatives to contact an attorney and begin the process. There are a number of expedited procedures which may allow relatives to obtain access, a probate court order authorizing management to open the unit, or a summary probate process available for low value estates when a personal representative is appointed quickly. Most relatives refuse to go through this process, feeling it is unnecessary. When they do not take action, there is no other good option for management other than waiting the 60 days from the date of death, as will be discussed below. Are you under a legal duty to change locks, guard the unit or otherwise prevent access to third parties? Nothing in the law addresses this, but it is clear that with regard to an individual that does not already have access, you should not give access to that third party absent a court order. The sole surviving son or daughter of the deceased has no more right to enter the unit than a stranger on the street. If you give access that was otherwise not available, you open your company up to massive liability. You have no idea of the value of the items inside; we have seen cases in which individuals lived like absolute paupers but had personal property of very high value stashed in the apartment upon death. We have seen cases in which the resident informed the property manager that the resident had no relatives, but by some strange magic, a relative did indeed appear upon death, wanting nothing more than to get in, take a few items of value, and leave the manager with the rest.

Power of Attorney

In some cases, you may have a resident who gave a power of attorney to a friend or relative. This power of attorney details what the friend or relative is able to do on behalf of the resident. The power of attorney allows the holder or “attorney in fact” to sign contracts such as the lease, make health care decisions, sell property, and almost anything else that the power of attorney enumerates. There is one really huge limitation with a power of attorney. It ceases and becomes null and void upon the death of the resident. If you have a power of attorney for a resident in the resident’s file, it becomes 100% useless upon death.