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small LANDLORD BIG problems

WHEN A TENANT DIES Steps for landlords in the aftermath of a tragedy

BY JOE HOFFER, COHEN HIGHLEY LLP

T

his article applies only to circumstances where there is one tenant on the lease (regardless of the number of other occupants) and that tenant dies. The frequency of this circumstance occurring has increased substantially over the past decade as the tenant population ages and at a time when renting is a preferred form of tenure for a substantial number of single seniors. If there is more than one tenant named in the lease, then the tenancy is typically a “joint” tenancy, and upon the passing of one tenant, the other tenant and the tenancy itself, by default, continues on in the name of the surviving tenant(s). Where there is only one tenant of the tenancy and that tenant dies, the mandatory provisions of the Residential Tenancies Act [RTA] take over, quickly displacing common sense and compassion. Section 91 (1) of the RTA states: 18

FAIR EXCHANGE | MARCH/APRIL 2017

“If a tenant of a rental unit dies and there are no other tenants of the rental unit, the tenancy shall be deemed to be terminated 30 days after the death of the tenant.” The provision is simple enough: count 30 days after the known date of death and that is the end of the tenancy. If a tenant passes away mid-month, for example, then absent any arrangement to the contrary and assuming the rent was paid on the first of the month in which the tenant died and that there is an LMR deposit, then the estate of the tenant would be entitled to recovery of ½ of LMR in the following month. There is a further set of RTA provisions, however, which expose the landlord to serious liability if it does not properly carry out its obligations to the tenant’s estate. Section 91 RTA states that: “The landlord shall, until the tenancy is terminated under subsection (1),

(a) preserve any property of a tenant who has died that is in the rental unit or the residential complex other than property that is unsafe or unhygienic; and (b) afford the executor or administrator of the tenant’s estate, or if there is no executor or administrator, a member of the tenant’s family reasonable access to the rental unit and the residential complex for the purpose of removing the tenant’s property. The foregoing requirements mean that, while the landlord may enter the unit without notice to remove any property that is unsafe or “unhygienic”, the landlord also becomes, in effect, the trustee of the property with an obligation to “preserve any property of a tenant who has died.” The most effective way to do that is to change the locks and leave a note on the door, or contact “emergency contact” persons or

FRPO's Fair Exchange of Rental Industry News  

April/May 2017

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