There is often a lot of confusion and misunderstanding about this.
First off – a tenancy does not end when the tenant dies. What happens depends on the circumstances.
If the tenancy is in joint names then the living tenant will acquire the deceased tenant’s share by what is known as the ‘right of survivorship’. So if a husband and wife rent a property jointly and the husband dies, it will then belong just to the wife.
If there is only one ‘sole tenant‘ then what happens depends on what sort of tenancy it is.
- If the tenancy is still within its fixed term, then the remainder of the fixed term is a property right, the ownership of which will pass to the deceased tenant’s Personal Representatives* as part of the tenant’s ‘estate’ (i.e. everything he owns when he dies)
- If the tenancy is a periodic ‘statutory’ tenancy under the Rent Act 1977, then the tenancy will pass either to the spouse (if there is one living) or in some circumstances to a member of the tenants family living at the property at the time of death (for full details see the act)
- If the tenancy is a periodic assured tenancy under the Housing Act 1988 then it will normally pass to the spouse (if any). This will also happen with an assured shorthold tenancy, but here the landlord can easily end it by serving a section 21 notice (again, for full details, see the act). A landlord can also recover possession through the courts under ground 7.
- If there is no-one eligible to succeed to the tenancy under the ‘succession’ provisions of the Rent Act 1977 or the Housing Act 1988, then the tenancy will, as with a fixed term tenancy, pass to the tenant’s Personal Representatives as part of his estate.
So what rights and obligations do the personal representatives have?
Basically the same as the tenant’s were. So if there are rent arrears due to the landlord, these will have to be paid from the estate before any money or assets can be given to beneficiaries under the tenant’s will or intestacy.
However note that the Personal Representatives are not liable themselves, in their personal capacity, for any money. So if a tenant, Fred, dies with no assets and owing £2,000 rent arrears, the landlord will get nothing.
He can’t expect, for example, Fred’s sole surviving niece, Alice, to sell her own house to pay off her uncle’s debt. Its not her debt.
If Fred died with money in the bank and other assets however, then Alice may lose her inheritance as the £2,000 rent will have to be paid to the landlord before she can take anything.
It is important to realise, particularly if there are any assets in the tenant’s estate, that the tenancy will not necessarily be ended just by telling the landlord that the tenant has died and handing the keys back.
Where, for example, the fixed term has not yet ended, then rent will still fall due on a month by month (or for a weekly tenancy, week by week) basis. Although in the Fred / Alice scenario, I see no reason why Alice could not move in for the remainder of the fixed term if she pays the rent.
Normally, however, the landlord will agree to take the property back, even if the fixed term still has a while to run, as they will want to re-let.
If the tenancy is a periodic one, then the Personal Representatives will be able to serve a notice to quit on the landlord and end the tenancy that way.
How can the landlord end the tenancy on the death of the tenant?
What usually happens is that the landlord will want to take the property back and re-let it. However, he does not have the right to just do this, unless this is with agreement with the tenant’s Personal Representatives.
To formally end the tenancy, he will need to serve notice on the Personal Representatives, and then, if they don’t agree to give up possession, or if there is someone else living at the property, obtain a possession order through the courts.
- For an AST he should serve a section 21 notice.
- For an assured tenancy he will be able to serve a section 8 notice citing ground 7.
- For a common law / unregulated tenancy, he should serve a Notice to Quit.
Ground 7 was initially only available for periodic tenancies but can now also be used during the fixed term. See more here.
What happens if there are no personal representatives?
If the tenant has no friends or relatives and there is no-one able to deal with the administration of his estate after his death, then an official called ‘The Official Solicitor and Public Trustee’ has the authority to deal with this.
There is a (rather uninformative) website here.
So for example, if the landlord wants to serve a notice, he will be able to serve it on the Official Trustee.
I suspect in most cases, the landlord just takes the property back, in agreement with the tenants family. In most cases this will be the most sensible way to proceed.
However, if there is no agreement, it is as well to know what the rules are.
* ‘Personal Representatives’ includes both the executors under a will and administrators appointed when the person dies intestate (i.e. without having made a will).