Obtaining Possession of a Property After Death of a Tenant

By Samuel Winterbourne, Legal Assistant at Woodstock Legal Services

Sadly, there are sometimes cases where a tenant unfortunately passes away whilst still in occupation of a rental property. Should this happen under an Assured Shorthold Tenancy, however, the agreement does not automatically come to an end.

If the tenancy is in joint names the living tenant will assume the deceased tenant’s share of the property and rent.

If the deceased was the sole tenant, the landlord will no doubt want to try and recover possession of their property as quickly as possible. Woodstock Legal Services always recommend that the first thing landlords do is establish if there are any Personal Representatives acting on behalf of the tenant’s Estate and make an agreement to end the tenancy. It’s advised that landlords to obtain any paperwork, such as the grant of probate, and check this with a solicitor to confirm the person does indeed have authority to act on behalf of the deceased’s Estate.

Usually, any Personal Representatives will co-operate to agree to possession to prevent any further liability for the Estate of the deceased tenant, however if they decide not to hand back possession of the property the situation can become more complicated.

Notice will need to be served on the Personal Representatives but there are different notices depending on the circumstances of occupation. Landlords should always seek legal advice to ensure the correct notice is served to avoid any delays in regaining possession.

What happens if there are no personal representatives?

If there isn’t anyone to deal with the administration of the tenant’s Estate, the tenancy will be transferred temporarily to the Public Trustee. The Public Trustee is an independent official body that acts if there is no will or no named executor and so the landlord would need to serve a notice on the Public Trustee to end the tenancy.

The Notice must be served on the Public Trustee for purely administrative purposes. It’s important to note that the vesting of the tenancy does not transfer any of the tenancy obligations, such as paying the rent, to the Public Trustee.

If you receive sad news about a deceased tenant, take action

• Do not make the mistake of assuming the tenancy comes to an automatic end. The landlord risks an unlawful eviction claim if they do not follow the correct processes.

• It is important for a landlord to contact the tenant’s next of kin immediately. Please keep this information on the file readily available in case it is ever needed.

• Ensure that any person you are dealing with has authority to act on behalf of the Estate – consult a solicitor with the necessary paperwork

• If a tenant falls behind on rent contact them immediately – sadly sometimes a change of financial circumstances is not the only reason a tenant has stopped paying.