A challenge occasionally faced by residential landlords is what to do if a tenant dies during the term of the lease and no one “steps in” to handle the tenant’s estate. Landlords of low-income subsidized housing may be especially likely to encounter this scenario. Many low-income tenants have not made a Will that would appoint an Executor and otherwise don’t have sufficient assets to entice a relative to take the necessary steps to “open an estate” and qualify to handle the deceased tenant’s affairs.
If rent is no longer being paid for the deceased tenant, some landlords may think that it is appropriate to dispose of the tenant’s personal belongings as they see fit and retake possession of the premises. However, landlords in North Carolina should be aware that there is a proper way of handling the situation.
What to do if the property is left unoccupied
An initial question is whether anyone continues to occupy the leased premises. If the premises are not occupied by a person, then the landlord may – if no estate has been opened, and the paid rental period has expired for at least 10 days – file an affidavit with the court that provides information about the tenant’s death and the items remaining in the premises. The landlord must send a copy of the affidavit to any contact person who the tenant listed (or, if none, must post notices about the affidavit). After the affidavit is filed, the landlord can remove and store the tenant’s property and retake possession of the premises. After 90 days, if no one has duly qualified to collect the tenant’s belongings, the landlord can then either give the items to a non-profit organization or sell the items. Proceeds from selling the items can be applied to unpaid rents or other costs; however, a sale requires posting of certain notices. The landlord must provide an accounting to the court with regard to any donation or sale of the items.
What to do if the property remains occupied
If any person occupies the premises after the tenant’s death (for example, a friend or relative is living in the property), a different issue is presented. If the person was a co-tenant with the deceased tenant, the co-tenant can likely continue with the lease – and deal with the issue of what to do with the deceased tenant’s things. However, assuming that the occupant has no right to continue renting the premises and needs to be removed, the proper procedure can be tricky. Arguably, the person is a trespasser and could be locked out, with no recourse against the landlord. But a more prudent path would be to file an eviction lawsuit to regain possession of the premises. In light of the fact that North Carolina’s eviction procedures require a landlord-tenant relationship between the plaintiff and defendant to initiate “summary ejectment” proceedings, this raises a question about who to name as the defendant in the suit. The occupant (who is not actually a tenant)? The original tenant (who is dead)? One solution is for the landlord to have a “public administrator” appointed as the representative of the tenant’s Estate and then sue the public administrator. Ultimately, significant costs and headaches can be encountered, if this situation arises. An experienced landlord-tenant attorney can help.
About the Author
Elliot Fus
Elliot has practiced law for over 20 years and is a member of the Federal, North Carolina and Forsyth County bar associations. He is an experienced litigator with major case experience in state and federal courts and in private arbitrations. Elliot has a broad range of experience with landlord-tenant law in contexts ranging from shopping centers to affordable housing complexes.
