A number of queries have been referred to my office in recent months by landlords, with the unfortunate situation that their tenant had died during the tenancy.

As landlords they were unsure how they could or should react to events. The understandable worry was that expected monthly rent (often required to cover mortgage repayments) may be no longer forthcoming resulting in an extremely difficult and sensitive situation.

If the tenant dies during the fixed term of an assured shorthold tenancy, the tenancy does not automatically come to an end, contrary to what many people assume. The tenancy agreement is a contract and a contract does not come to an end when a contracting party dies, the obligations under the tenancy do not cease as a result of the tenant’s death. The benefit of the tenancy and the liability to pay rent for the remainder of the fixed term both become part of the deceased tenant’s estate, which, I recognise, may not necessarily have the funds to do so.

What is likely to happen in practice will depend on the exact circumstances. If the tenant who has died was one of at least two tenants, jointly and severally liable under the terms of the agreement, the tenancy will continue with the surviving tenant(s) being bound by the obligations contained therein. While there may be concerns if the surviving tenant is worried as to how they will meet the financial obligations to pay the rent, any proposed early termination of the tenancy must be agreed in the usual way with that tenant.

An assured shorthold tenancy gives limited security to a tenant. At the end of the fixed term, a landlord does not need a reason to seek possession of the property, but merely needs to follow the correct procedure. The landlord may serve a section 21 notice, the most straightforward way of regaining possession of the property, but it is necessary to wait until the end of the fixed term before possession can be obtained. Of course, if the tenancy has lapsed into a periodic tenancy, a section 21 notice may be served at any time to take effect once the requisite two months’ notice has expired. Where it is determined that notice will be given in the circumstances of a tenant death, notice should be served on the tenant’s estate. This may be the easiest way to seek possession of the property if the fixed term has, or is shortly about to, come to an end.

I realise, if the sole tenant has died, the landlord may want to seek possession of the property before the end of the fixed term or establish if any party has obtained succession rights. During the fixed term of an assured shorthold tenancy, the tenancy can be passed on to another person according to the will of the person who has died. If no will is made, it may pass to their next of kin according to the rules of intestacy. That person may continue to live in the property under the terms of the existing tenancy until the landlord wishes to seek possession or the successor wishes to bring the tenancy to an end, for example at the end of the fixed term. I would recommend that agents themselves, or by advising their landlord client, seek legal advice to ensure that the rules concerning succession, which can be somewhat complicated, have been correctly understood and applied in the individual circumstances of the case.

If the landlord wishes to seek possession following the death of a tenant during
the fixed term, it is sensible, in the first instance, to approach the tenant’s estate which may be anxious to end the tenancy at the earliest opportunity (having been afforded a reasonable time to clear the property and remove all personal belongings). If the tenant’s executors will agree an early surrender with the landlord, the tenancy will be brought to an end.

If a tenant has died and no one is eligible to (or wants to) take over the tenancy by succession, it is very important to end the tenancy correctly if agreement to an early surrender cannot be reached. This must be done because until the tenancy has been officially ended, the estate of the person who has died will continue to be responsible for paying the rent. If no agreement can be reached, the landlord may wish to seek legal advice as
to whether he is entitled to seek an order of possession by way of relying on a section 8 notice. The Housing Act 1988 provides 17 grounds on which a landlord may seek possession before the fixed term of tenancy has finished. The landlord cannot evict the tenant (in this case the estate) without first obtaining an order for possession from
a court, the first step of which involves serving a Section 8 notice to quit on the tenant. The notice states that the landlord intends to seek possession of the property and states the ground or grounds on which possession is sought. One of the grounds (Ground 7) provides that a court must order possession if the former tenant has died (except where there is a person with a right to succeed). Again, legal advice may be necessary to establish if this is an appropriate way forward.

Once the tenancy has been terminated, the landlord should remember that the deposit will need to be returned (minus any agreed deductions) to the deceased’s estate. Care should be taken to ensure that the deposit is paid to the correct person; that is, the personal representative of the estate rather than someone who indicates that they are the next of kin.

I hope that this article proves informative in giving some indication of the issues agents are likely to face when seeking to advise a landlord or tenant experiencing similar difficulties.