| Past Issues | Advertise | www.fl-apartments.org | May 2009 |
Dealing with the Death of a Tenant Is Never Easy
By Rebecca Spinale, Esq. The Law Offices of Lowenhaupt & Sawyers It's Monday morning, you're running late and you haven't even finished your first cup of coffee, when you get that phone call from your courtesy officer or maintenance man that one of your tenants has passed away. You immediately drop everything and rush to the office to deal with this situation. The death of a tenant is sad and often tragic. It also raises many difficult questions for owners and managers, such as, "Can I give access to the deceased tenant's relatives?" "When should I take possession of the apartment?" "What do I do with the personal belongings left in the apartment?" "Who gets the security deposit?" "Can I keep the security deposit?" The Florida Legislature, realizing the need to give landlords some clear answers to at least some of these tough questions, passed a bill in June 2007, amending Florida Statute 83.59 and Florida Statute 83.67(5). Thanks to the Florida Apartment Association, a landlord now has the right to take possession of the leased premises upon the death of a tenant and to dispose of the deceased's personal property, under certain circumstances. WHEN CAN A LANDLORD TAKE POSSESSION OF THE APARTMENT? When a tenant dies, the lease termination is a matter of law. The Florida Legislature added Florida Statute 83.59(d) to allow a landlord to take possession of an apartment when all of the following conditions have been fulfilled: 1. The last remaining tenant in the apartment has died. (If there is another tenant on the lease, the lease remains in effect with regard to that tenant.) 2. The rent is unpaid. 3. 60 days have elapsed following the date of death. However, even if the foregoing conditions have been fulfilled, the landlord may not take possession of the apartment if the landlord has been notified, in writing, of the existence of a probate estate or of the address of a personal representative. Remember: This law does not apply to federally administered or regulated housing programs. Therefore, for example, a landlord cannot retake possession of the apartment even if the above provisions have been met, if the apartment is subject to a Section 8 lease or the property is a HUD based housing project. ONCE A LANDLORD TAKES POSSESSION OF THE APARTMENT, CAN THE LANDLORD DISPOSE OF THE PERSONAL BELONGINGS LEFT IN THE APARTMENT? Take a moment to review your lease agreement, because you may only dispose of the personal property of the deceased tenant if you have the correct language in your lease. Make sure you have the following highlighted language in your lease agreement: 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. Having this language in your lease makes your job so much easier! Remember: If your lease agreement does not contain this language, then you will not be able to dispose of the property, but will have to store the personal property of the deceased tenant. So, what about some of the other questions raised above? So far, the Florida Legislature has not specifically addressed these issues, and therefore the answers are not as clear cut and should be discussed with your legal counsel. Who knows, maybe this will be the subject of a future article! |
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