How to Handle Access to, Recovery of Deceased Tenant's Apartment

When the tenant of a rent-regulated apartment dies and there is no relative living in the apartment who claims to have “pass-on” rights, an owner is still left with a number of legal complications before the apartment can be recovered.

When the tenant of a rent-regulated apartment dies and there is no relative living in the apartment who claims to have “pass-on” rights, an owner is still left with a number of legal complications before the apartment can be recovered.

As an owner, you should be worried about the potential presence of unknown people having access to the apartment. The tenant may have given keys to the apartment to people such as caretakers, cleaners, and friends for emergencies. The following is an overview of your rights and what you should do when strangers demand access to the deceased tenant's apartment.

Legal Overview

When a rent-stabilized tenant dies, the most important thing to remember is that the tenant's lease does not die with him. The lease represents a separate contractual obligation that survives the death of the tenant and your obligations under the lease continue until it expires.

Assuming, then, that a rent-stabilized tenant has died, and there is no one else occupying the apartment, the first thing an owner must do is determine whether the tenant has an estate or next of kin. Usually, the deceased tenant's will names an executor of his estate who is charged with administering the will, ensuring that his final wishes are respected, and taking care of his financial obligations.

The fact that a lease continues does not mean that the estate may use the apartment for living purposes. If the tenant was occupying the apartment alone, no individual may reside in the apartment unless he or she has the owner's permission.

Rent. Under state law, “When a tenant has died while his lease is in effect and you do not receive rent, and there has not been the appointment of a representative such as an administrator executor, and no representative or person has taken possession of the premises, a non-payment proceeding can be started after three months from the date of death of the tenant by suing a surviving spouse, if there is one, or, if not, then one of the surviving issue or any of the distributees of the dead tenant” [RPL Sec. 711 (2)].

In this situation, an owner is given the opportunity to sue the tenant's next of kin to collect rent for the apartment and, oftentimes, negotiate for the return of the apartment to the owner's possession before the expiration of the lease.

Sublet. Owners must also bear in mind that the executor of a deceased tenant's estate has the right under state law to request of the landlord permission to sublet and/or assign the tenant's lease. However, the provision that allows an estate to ask permission to sublet is different from the one pertaining to the subletting rights of living tenants [RPL Sec. 226-(b); Sec. 236]. An owner of a deceased tenant's apartment is allowed to reject any sublet or assignment request.

Establish Communication

As an owner, you are obligated to allow the deceased tenant's estate reasonable and necessary access to remove the tenant's personal property. If you are aware that a tenant has died and nobody has reached out, you will need to find out who the estate executor is or who is dealing with the deceased tenant's burial, property, etc.

You may consider posting a letter on the tenant's door requesting the name, address, and phone number of the person dealing with the affairs of the deceased tenant. If you get no response, you should immediately determine whether an estate has been formed, and contact the executor or administrator of that estate.

You can do this by by checking records in New York Surrogate's Court to determine whether any probate filings or requests for the court to determine how an estate will be divided have been made. These filings will show if a will has been offered for probate, and whether any individual has requested letters of administration in reference to the estate of the deceased person.

Should a Surrogate's Court check turn up empty, you can attempt to communicate with the hospital where a tenant died or, if applicable, check police reports to determine who claimed the body. There are many instances where an owner contacts an individual through these means, and can shortly thereafter arrange for a mutually agreeable timetable for the removal of the deceased tenant's personal property and a specific date for you to take back possession of the apartment.

Verify Identity Before Allowing Access

When your tenant's next of kin comes to collect his belongings, make sure you don't hand them over to just anyone. Especially if you did not know the tenant had died, make sure you get proof of the tenant's death and proof that the person has authority over his estate, says Lewis Barbanel, president of Barberry Rose Management, Inc. The worst-case scenario for the owner in this situation would be if the tenant is alive and people claiming to be next of kin steal his stuff. Then, the owner would be liable, Barbanel adds.

New York attorney Alan Kucker warns against just verifying a person against an emergency contact you may have in your records for the deceased tenant. Check for authority from the Surrogate's Court. An emergency contact may not be the proper estate representative, says Kucker.

According to Kucker, allowing the wrong person to access the apartment may lead to a claim that there were valuables in the apartment that are now missing—and that the owner is responsible because he allowed unauthorized persons entry into the apartment.

Tenant Has No Estate

If a deceased tenant has neither an estate nor next of kin, the owner may face numerous obstacles attempting to recover possession of the apartment. In such a situation, the owner must petition the Surrogate's Court for the appointment of a public administrator to facilitate the recovery of the apartment. This proceeding can be time-consuming, and is best accomplished by hiring an attorney.

As an owner, in this situation, you may be tempted to store the possessions found in the apartment, and take possession of the apartment without going through the proper legal channels. This is especially tempting if there are no family members, friends, or other individuals to contact and the apartment remains untouched and unchanged for months following the tenant's death.

This is very risky and will be seen by a court as a wrongful eviction. With a rent-stabilized apartment with a lease, the owner must remember that the death of the tenant does not terminate the lease agreement. Therefore, any retaking of possession of that apartment without resort to a legal proceeding can expose the owner to a wrongful eviction suit.

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