When a Tenant Dies

A tenant’s death terminates the tenancy. However, the owner generally does not regain possession of a rental unit immediately after the death. Instead, there may be several issues to confront before the unit can be re-rented.

First, if there are any questionable circumstances surrounding the passing, the County Coroner’s Office and/or the Police Department will seal off the premises pending the completion of an investigation. As a general rule, neither the owner nor anyone else may enter the unit until the seal is removed, and in San Francisco this process could take several months.

Second, if there are any co-tenants or subtenants, the tenancy may continue. In the case of a co-tenancy, the co-tenant retains control of the unit and will coordinate entry with the decedent’s relatives. If a subtenant remains, you should, if permitted, impose a new rent under the Costa-Hawkins Rental Housing Act, and in instances where the subtenant was never approved by the landlord, an eviction is appropriate.

In many situations, the tenant dies and the apartment is empty. A friend or relative asks for permission to retrieve the belongings. Before allowing access, you must ascertain whether or not this person is the executor or trustee of the decedent’s estate. Do not assume that someone claiming to be the designated “emergency contact” is actually legally entitled to enter into the unit and to remove belongings. To the contrary, oftentimes someone who is not a beneficiary comes in and cleans up; if this happens, you may be sued by the persons who were actually entitled to receive the possessions. (Also, please remember that sometimes direct family members, like children, do not inherit what is left behind, so be careful about verbal representations!) Demand to see proof, such as “letters testamentary” issued by the Probate Court, or a certificate of trust, which will set forth the parameters of who is responsible for disbursing the decedent’s assets.

Above all else, do not let anyone move into the unit in order to pack up belongings. The world knows about San Francisco’s liberal rent laws, and the emergency contact may turn out to be the new squatter who will not leave after the funeral. Indeed, there have been many cases where a relative moves in, pays the owner “rent” during the three of four months it takes to wrap up the decedent’s affairs, and then argues, sometimes successfully, that a new tenancy at the old rental rate was established. Therefore, any retrieval of items should be closely supervised, and under no circumstances should keys be issued or overnight stays allowed.

In sum, while death terminates a tenancy, the process of disposing the belongings may take many months. During this time, no one can be allowed to move in, and the removal of items should be permitted only when the emergency contact has proved that they have legal authority to enter and retrieve the property.

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