Apartment Management Magazine Death in a Unit:
Dealing with the drama of a tenant’s death in the rental unit
By Daniel Bornstein, Esq.
A death in rental accommodation is always a traumatic experience for landlords. Most of the experiences we have encountered are natural deaths. Yet with a raging addiction problem, with fentanyl becoming the deadliest killer, it can become even more traumatic.
Discovering a tenant slumped on a toilet who died of an overdose or a landlord who hired a contractor to carry out the agreed-upon repairs, only to find the tenant lifeless on the kitchen floor. Even worse, a methamphetamine-induced homicide or suicide occurs in the rental unit. We’ll spare you many horror stories that we hope and pray you’ll never encounter.
Some rental property owners have had to seek mental health counseling after making a horrific discovery.
When a tenant expires there are a multitude of rights and responsibilities on the part of the landlord and we will give a brief overview here.
Owners must withdraw
When someone passes by, it goes without saying that the first action is to call 911. The owner or his agent must not tamper with anything but let the authorities do their job. If a coroner is in charge of an inquest, they have complete control over the rental unit and the tenant’s property.
We are reminded of an episode of Law & Order when Detective Joe Fontana was approached by the owner of a hotel where there had been a homicide and asked how long the hustle and bustle of the investigation would take, what to to which the detective sarcastically replied that that would also be as long as it takes and if the hotel owner obstructed, there would be police tape taped around the entire hotel, and “that would be really bad for business.”
The thing is, rental housing can be held hostage for a while while the authorities do their job. If the death occurs as a result of a homicide, it can take weeks or even months.
Ideally, the landlord has emergency contact information listed in the rental application, but often contact information for loved ones is not available.
If the next of kin cannot be identified, the police or the coroner can facilitate the task. If, however, there is a homicide or suicide, they will normally handle this task on their own.
Be careful who you deal with
After the death of a tenant, many relatives and others may want access to the property, if only to take a sentimental photo or attempt to take something of monetary value. Add conflicting heirs and communications with multiple people and it can quickly spiral out of control.
What we would like is to have a single point of communication with a single person, and that is the trustee or executor who is appointed by the court to settle the earthly affairs of the deceased. This reference person must produce documents proving that he has the power to settle the succession.
What we don’t want is multiple people asking to enter the rental unit, so we recommend a policy of changing locks after official permission and not accepting requests from anyone except the decision maker who is legally authorized to dispose of the assets of the estate and the personal effects of the deceased.
Probate and trust issues are not our wheelhouse and are beyond the scope of this article, but the key point is that landlords don’t want to get bogged down in family matters and let people into the business. unit to pick up items, regardless of justification. With proper credentials, we want the trustee, executor or administrator to be the only party involved.
There are many rules for how goods are disposed of, but rest assured, these are not the finder’s gatekeepers.
Although we often find that many parents come out of the woodwork to claim a right to property, this may not be true. This decision does not belong to the owners, but to whoever has the power to settle the estate.
Or maybe the family takes what they want and there are items left over. The owner must respect the rules surrounding the abandonment of property set out in California Civil Code – CIV § 1951.3.
When family members take items, what we would like to see is a written receipt for the items they have removed. If goods are moved to a warehouse, they must be documented. The owner should be a good custodian of any belongings that have been left in the unit and we don’t want to deal with claims that a diamond ring or something else has gone missing.
When someone walks by, it may not be a typical cleanup and a biohazard specialist is needed. Depending on the nature of the death, flooring and rotting, this can be costly. Depending on the nature of the death and the time that has elapsed since the discovery of the body, this can be in the thousands of dollars. The last bill that fell on our desk was for $4,800.
Obtain a copy of the death certificate
This can be obtained by family members, but sometimes they are overwhelmed or uncooperative, in which case the court may be petitioned for it.
Declaration of death
The owner of a rental property or his agent is not required to disclose to a purchaser or tenant that there has been a death or to disclose the circumstances of the death where the death occurred more than three years before the date of transfer or rental of the property. . Also, if the deceased tenant died of a complication related to HIV or AIDS, the landlord is not required to disclose the cause or even the death. However, Bornstein Law advises clients not to misrepresent when asked.
What about the rent due?
When a tenant is on a month-to-month tenancy and dies, the tenancy is terminated as soon as the landlord becomes aware of the death.
If, on the other hand, the tenant is on a fixed-term lease, the estate is technically responsible for the rent due. The death of the tenant must therefore be treated as a breach of lease.
Under Cal. Civil. Code § 1951.2, owners must take proactive measures to mitigate the damage caused by the death. Simply put, this means that when the landlord is out of money because a tenant has died, they will have to make efforts to re-rent the unit and get some money back. If there is no reasonable and good-faith effort to mitigate the damages suffered by the owner, the owner finds it difficult to recover losses that could have been avoided.
Although the estate is liable for unpaid rent as long as the landlord has fulfilled its obligation to mitigate, the family and heirs are not personally liable if the estate does not have enough money to pay all claims. It is not uncommon that there is simply no cash.
If there is unpaid rent, the landlord has the right to deduct it from the security deposit. Another allowable reason to deduct from the security deposit is to pay the cleaning fee necessary to re-rent the unit. In the event of a death, the cleaning costs can easily exceed the amount of the security deposit.
For any security deposit due to the estate, a check must be made payable to “the estate of the name of the deceased”. The landlord must send accounting as required by law and may have to file a claim for probate if no payment agreement is reached with the deceased tenant’s estate.
Family members and others who linger in the rental unit after the death of the tenant
I hope you have taken the advice to change the locks and only deal with the trustee or executor of the estate, but we find that when someone dies some family members camp out in the accommodation rental, or at least try to do so.
We will have to check what their legal status is. Are they intruders? Is it a sub-tenant who paid rent to the deceased master tenant? Or is the remaining occupant simply a permit holder who has been given limited permission to remain in the unit?
Bornstein Law can determine the answers to these questions, determine the rights afforded to those still residing in the unit, and advise accordingly. If there is a head tenant who has passed away and there are sub-tenants remaining, sometimes our office may increase the rent under Costa-Hawkins.
When a family member, caregiver, or other guest lives in the deceased’s rental unit, the Bornstein Act can sue for forced detention if no tenancy has been established.
Death is part of the circle of life and is inevitable. Just as inevitable for landlords is the passage of tenants. There is a life cycle in leases, whether it is the beginning of the rental relationship, the renewal of the lease, the moving of tenants, the eviction of tenants, the exchange of roommates, etc.
In addition to these typical events that landlords are used to, we also need to be prepared for the possibility that the tenancy relationship may break down due to the death of the tenant. Rental housing providers should know their rights and responsibilities when this unfortunate event occurs and, with the proper guidance, return their rental business to normal as soon as possible with the least amount of hassle.
ABOUT DANIEL BORNSTEIN
More than a landlord-tenant legal practitioner, Daniel Bornstein is the broker of record for Bay Property Group, a property management company that protects and optimizes landlord investments. He is also renowned for his training seminars and is called as an expert witness in complex real estate disputes. To avoid or resolve friction within rental units and cauterize risk, Daniel is happy to provide expert advice to landlords, property managers and other real estate professionals looking to survive and thrive in the tough market and rental housing dispute today. Call 415-409-7611 or email [email protected]