When there’s a will, there’s a way – Can the possession be recovered?
As the tenancy agreement continues after the death of the landlord, the tenant has the right to stay in the property under Protection from Eviction Act 1977. This means that the usual procedure to recover possession of a residential property must be complied with.
Once a grant of probate or grant of letters of administration has been awarded, the executor or administrator may serve a section 21 notice and/or section 8 notice under the estate of the deceased landlord to start the possession procedure.
The question of whether the executor or administrator can serve a section 21 notice and/or section 8 notice before the grant is awarded is arguable. Where the landlord has died leaving a will, the executor’s title and responsibilities derive from the will following the moment of death. It is therefore arguable that the executor’s authority is set out in the will from the date of death and the section 21 notice and/or section 8 notice can be served prior to the grant of probate. However, as the executor’s legal right to deal with the deceased’s landlord’s estate is proved by the grant of probate, the belt and brace approach is to wait until the grant is awarded. This is particularly advisable if there is a dispute or likely going to be a dispute regarding the executor’s title before the grant of probate is awarded.
Where the landlord has died intestate, the answer seems clearer as there is no will be setting out written authority by the deceased landlord. The title and responsibilities of an administrator derive entirely from the grant of letters of administration. Therefore, it is my belief that the person applying for the role of administrator must wait for a grant of letters of administration to be awarded before a section 21 notice and/or section 8 notice can be served.
If instructing a solicitor to serve the section 21 notice and/or section 8 notice, it is advisable to provide a copy of the death certificate and grant of probate or grant of letters of administration (as appropriate) in order for the solicitor to understand who has authority to vary the tenancy.
If the tenant wishes to end the tenancy agreement, he/she must serve a notice to quit on the estate of the deceased, which will typically be given to the executor/administrator dealing with the estate. If the notice to quit is invalid, it will be up to the executor/administrator to decide whether to accept the invalid notice to quit and subsequent surrender of the tenancy.
What happens if there are joint landlords/owners?
If there is a joint landlord – the interest in the property and how the tenancy should continue will depend on whether the property (typically referred to as the ‘land’) was owned by the joint landlords/owners as ‘joint tenants’ or ‘tenants in common ‘.
Where the property was owned by the joint landlords as ‘joint tenants’ – the law of survivorship will apply and the interest in the freehold or leasehold to the property will be transferred to the surviving joint landlord/owner. The law of survivorship will likely supersede what is stated in the deceased landlord’s will. This is unless a notice of severance of the joint tenancy is executed to sever the joint tenancy for it to become a ‘tenant in common’.
Where the property was owned by the joint landlords as ‘tenants in common’ – they each own a share of the property that they can do with as they want. This means that the deceased landlord’s interest in the property will be transferred to the person listed in the will (if any) or principles of distribution will apply. Typically, joint landlords will own a different share percentage of the property depending on how much money they each contributed to the purchase of the property.
Legal ownership (i.e. joint tenants or tenants in common) is the true ownership of the property and set out who are the joint landlords, but someone else may also own an equitable/beneficial interest in the property. If a third party such as a spouse or new partner has invested money into the property (i.e. towards decorating or the mortgage), then they may have an equitable interest in the property that will need to be recognised in the distribution of the estate of the deceased.
The surviving joint landlord must continue to comply with their obligations under the tenancy agreement, such as collecting rent, carrying out repairs, etc during probate. If the deceased landlord’s contact details were provided to the tenant during the tenancy and there is no managing agent, then the surviving joint landlord should contact the tenant to provide their details to ensure the tenancy agreement continues as smoothly as possible in the circumstances. This may include providing a different bank account for rent payments and serving a section 48 notice to the tenant providing a new address for service of any notices by the tenant. If the interest in the property is ‘tenants in common’ or ‘equitable interest’, then a third party may be entitled to a proportion of the subsequent rent payments.
What happens if there is a managing agent?
When an agent is managing the property and the sole landlord dies, it can be difficult to ascertain what happens to the rent payments. It is important for the solicitor dealing with the estate or the executor/administrator to provide a new bank account for the rent to be paid during probate. As discussed above, the bank will typically freeze the deceased’s landlord’s bank account following notice of their death. If there is any doubt about where the rent payments should be paid, the belt and brace approach is for the agent to keep hold of the rent until clearer instructions are provided.
If the agent is notified of or discovers any necessary repairs in the property and they have not received any new signed instructions from the person managing the estate (i.e. executor/administrator), then the agent may have to act as an agent of necessity to keep the tenant safe and safeguard the estate’s interests. With respect to any non-essential works (i.e. redecorating) or granting of a new tenancy without new signed instructions, the agent is not authorised to carry out these works until the executor/administrator has provided authority.
Conclusion
Following the death of a landlord there If you require any assistance recovering possession of the property and/or selling the property after the landlord has died, please do not hesitate to contact Woodstock Legal Services and we would be more than happy to assist you.
