Tenants Need Estate Planning

First, I do not represent landlords or tenants. I have, however, represented many personal representatives appointed to administer an estate in Florida. The law prevents the landlord from taking possession of a rental until certain conditions are satisfied.  landlord who won't grant access to the decedent's apartment or rented home.  This situation is another example of the need for planning, even by people who think they don't have enough to write a will. 

Several questions arise:  Does the landlord have the right to change the locks?  Does the landlord have the right to remove the property?  Does the estate owe the rent for the remaining lease term?  

When does the landlord have the right to take possession?

The Florida Landlord and Tenant Act, Chapter 83 of the Florida Statutes, says a landlord cannot take possession of a dwelling unit until 60 days after the last tenant dies if rent is current. Here’s what the statute says when a landlord files an action for possession:

83.59. Right of action for possession.—

(3) The landlord shall not recover possession of a dwelling unit except:

(d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.

The landlord does not have to recognize anyone who has not been appointed to serve as personal representative. That requires probate and letters of administration. It assures the landlord that they are dealing with the right person. 

What about the deceased tenant's property?

Section 83.67 talks about the tenant's personal property:

(5) A landlord of any dwelling unit governed by this part shall not remove the outside doors, locks, roof, walls, or windows of the unit except for purposes of maintenance, repair, or replacement; and the landlord shall not remove the tenant’s personal property from the dwelling unit unless such action is taken after surrender, abandonment, recovery of possession of the dwelling unit due to the death of the last remaining tenant in accordance with s. 83.59(3)(d), or a lawful eviction. If provided in the rental agreement or a written agreement separate from the rental agreement, upon surrender or abandonment by the tenant, the landlord is not required to comply with s. 715.104 and is not liable or responsible for storage or disposition of the tenant’s personal property; if provided in the rental agreement, there must be printed or clearly stamped on such rental agreement a legend in substantially the following form:

BY SIGNING THIS RENTAL AGREEMENT, THE TENANT AGREES THAT UPON SURRENDER, ABANDONMENT, OR RECOVERY OF POSSESSION OF THE DWELLING UNIT DUE TO THE DEATH OF THE LAST REMAINING TENANT, AS PROVIDED BY CHAPTER 83, FLORIDA STATUTES, THE LANDLORD SHALL NOT BE LIABLE OR RESPONSIBLE FOR STORAGE OR DISPOSITION OF THE TENANT’S PERSONAL PROPERTY.

For the purposes of this section, abandonment shall be as set forth in s. 83.59(3)(c).

This gets the landlord out of storing abandoned personal property, but I still think the landlord has to get an order of possession. In some cases, the landlord does not want to pay court fees or an attorney, so they just take possession. It looks like they really don’t have a right to take possession until 60 days after the death. They might changes locks thinking they're helping, but they also really can't grant entry to the apartment to someone who is not on the lease or appointed to serve as personal representative. From the landlord’s perspective, they don’t know who is entitled to the deceased tenant’s possessions without the appointment of a personal representative by the court.  They’re usually less cooperative if the rent has not been paid and the heirs don’t get the 60 day window.

If the death certificate lists a parent or next of kin, that must give them some assurance that the person has the authority to remove personal items, including the cat. In the past, some of my clients have related that the landlord was cooperative and things worked out without legal action.  That's not always the case, however. 

The take-away is to carefully read lease documents and plan by having a will and naming someone in the lease to access your rental unit.  A small amount of money and time can save a lot of expense and aggrevation for your loved ones.