If the tenants are husband and wife, then the surviving spouse remains obligated on the lease and will be responsible for taking care of the deceased tenant's property and estate. Simple enough.
If the tenants are unrelated (i.e., roommates), then someone must step in and take care of the deceased's property and estate. Now it gets harder. Who will that be? You don't know and you should not "guess."
For example, let's say we have an 18 year old boy, who is your tenant. He dies. If the boy's mother shows up, you may be tempted to turnover all the boy's property to her. That may be a bad decision. What if the father later shows up? What if, after telling you that the mother is a drug addict and that he was given full custody of the boy in the divorce proceedings 10 years ago, he then asks you to turn over the boy's personal property. Now what? Get ready to pay out some money, that's what.
Do not turn over any property belonging to a deceased tenant until someone gives you a court order appointing that person as the personal representative of the deceased tenant's estate.
But there is an alternative. The Act was amended in August 2007 and it now gives landlords a quick and easy way out of this dilemma. Section 33-1314(F) permits the landlord to request the name, address and phone number of the person the tenant authorizes to enter the rental property and remove the tenant's personal property if the tenant dies during tenancy. This statute goes on to completely release the landlord from any and all liability if the landlord follows this procedure.
BOTTOM LINE: Landlords should insist that all tenants designate a person who is authorized, under A.R.S. 33-1314(F), to remove the tenant's personal property if the tenant dies.
Does the tenant's death terminate the lease? Does the landlord have to move the tenant's personal property into a storage unit and try to re-rent in order to mitigate his/her damages? (Assume only one tenant and that tenant dies.)
By the way, I love your book!
Answer by Carlton C. Casler: Whether the terminates upon death or is binding upon the tenant's or the landlord's estate will depend on the language of the lease; some lease provide the lease terminates upon death, while other leases provide the lease is binding upon the heirs of tenant and the landlord. As for the duty to mitigate, the landlord always has a duty to mitigate Damages. "Reasonable" (not "heroic") efforts must be made to re-rent the property. Any personal property that the landlord moves and stores must be moved with care and stored securely.
Posted by: Ely | July 22, 2009 at 07:07 PM
what if there is still rent due on the lease but the landlord agrees to terminate the lease upon the death. Is the roommate responsible for the future rent? Can the landlords keep the last months rent and deposit for future months?
Answer by Carlton C. Casler: Short and seemingly simple questions, but the answers depend on many factors. If two unrelated tenants and one dies, the survivor remains fully liable for all the rent that comes due until the end of the lease term. The landlord would also have a claim against the deceased tenant's estate, provided the lease is written so that it is binding upon the tenant's heirs. If the last month's rent is prepaid, it is to be applied to the last month's rent. Contrary to what is generally believed, the security deposit is not automatically "forfeited" upon a default by the tenant. The landlord must calculate his/her damages and then apply the security deposit to the amounts due; if there is money left over, it goes to the tenant, if there is not enough to cover all the damages, the landlord may send the tenant a bill and, if not paid, may file a civil lawsuit to collect the full amount due. In all cases, a landlord must either: (1) refund ALL of the refundable deposits or (2) provide the tenant with an "itemized statement of deductions" that the landlord is making from the tenant's deposits, along with a check to the tenant for the remainder of the tenant's deposit (if any). (See A.R.S. Section 33-1321).
Posted by: Katie | July 16, 2009 at 12:22 AM