Recently, ABC Action News (WFTS Tampa Bay) reported a story about what can happen when a tenant dies during a residential lease. A Vietnam veteran who had rented a Tampa apartment while receiving treatment at a VA Hospital, died suddenly in the middle of his lease term. His two sisters came from out-of-state to settle his affairs and gather his personal items from inside his apartment. The sisters were understandably dismayed when the landlord refused to allow them to enter their brother’s apartment.
An ABC reporter came to the law offices of Lieser Skaff Alexander to interview attorney, Joe Alexander, to get his opinion on this matter. Below, is Joe’s analysis of the current law governing the landlord’s actions, when the last remaining tenant dies.
Must Be Authorized
The landlord’s decision may seem unsympathetic to the situation, but the landlord had no other choice, according to Florida law. Despite both sisters being named as healthcare surrogates and being listed as emergency contacts on the lease, none of these designations properly authorized them to enter the apartment. Upon the death of a tenant, Florida law prohibits a landlord from removing personal property from a rental unit, unless certain circumstances exist.
In addition, a landlord is not authorized to allow access to the rental unit for anyone who is (1) not legally named on the lease, or (2) does not have a probate court order naming him or her as personal representative of the deceased tenant’s estate.
60 Days Must Pass
In this instance, Florida law prevents a landlord from recovering possession of the rental unit except when the last remaining tenant dies, personal property remains on the premises, rent is unpaid, at least 60 days have passed after a tenant’s death, and the landlord has not been notified in writing of a probate estate or the name of a personal representative appointed by the Court. Only after recovery of the rental unit, may the landlord begin the process of removing the personal property of the tenant. The removal and disposal of personal property of the tenant is then governed by Chapter 715 of the Florida Statutes, and could add at least another 15 days to the process. The process under Chapter 715 requires the landlord to send written notification of the existence of the personal belonging to any interested parties and store the property until the statutory time period is over. However, the landlord can avoid the requirements of Chapter 715, if the lease agreement contains the following clause:
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.
In the absence of the highlighted language, the landlord cannot dispose of the property, until the landlord has recovered possession of the rental unit and has completed the requirements of Chapter 715.
Penalty for Violating Law
The law also has a penalty provision for violations. Specifically, a landlord who fails to follow proper procedure is liable to the tenant’s estate for actual and consequential damages or 3 months’ rent, whichever is greater, plus costs and attorney’s fees.
Can you Bypass the Law?
Generally, a residential landlord cannot avoid statutory duties through provisions of a lease. However, the lease and other documents can be drafted in a way to shorten the time that the personal property must remain. For example, a Florida will can save valuable time in the appointment of a personal representative by the Court. Also, including the above-quoted language in the lease will allow the landlord to release the personal belongings upon recovering possession of the rental unit (instead of then having to send notices to all interested parties). Those two things should save a substantial amount of time.
In this instance, the landlord and the survivors have a common interest in releasing the personal belongings, as soon as possible. While the statute cannot be totally avoided, proper planning can speed the process along. Landlords should consult a Florida attorney to ensure the lease contains language to allow for release of the personal belongings upon recovery of possession. Also, because landlords do not deal with tenant deaths on a regular basis, we suggest that when a tenant dies, the landlord contact a landlord-tenant attorney for guidance. Florida law doesn’t apply to some federally governed housing programs, and obtaining legal advice is always recommended to avoid a costly mistake. From the tenant’s perspective, proper estate planning will likely shorten the time that the personal belongings remain in the rental unit. To ensure the proper drafting and execution of estate planning documents, the tenant should also contact a Florida attorney.