How does the death of a sole tenant affect an assured shorthold tenancy?

Unless there is a specific clause in the tenancy agreement that outlines what will happen to a tenancy upon a tenant passing away, the death of a tenant does not automatically bring an assured shorthold tenancy to an end.

Without intervention, in most circumstances, the tenancy continues as if the client were still alive, but the tenant’s estate becomes liable to pay the rent plus any other charges outlined in the tenancy agreement.

If the tenancy continues, the landlord’s responsibilities also still apply, such as having to provide notice to whoever takes over the tenant’s responsibilities before accessing the property, maintaining the property’s heating and hot water systems, and any other duties outlined in the agreement.

However, there are ways to end the tenancy agreement when a tenant dies before the fixed-term tenancy ends, should the landlord wish it to.

What should a landlord do when a tenant dies during an assured shorthold tenancy?

Landlords should consider negotiating the surrender of the tenancy with the person who has authority over the deceased tenant’s estate so that they can rent it out to new tenants. Officially, a tenancy can only be ended by authorised surrender or via court order. Surrender is usually the simplest, most efficient and cost-effective way to end the tenancy.

While landlords may prefer not to surrender the tenancy because it means finding a new tenant, and potentially losing income until they can – it can take a long time to finalise the deceased tenant’s estate and there may not be enough money left in the estate to pay rent or arrears once it has been finalised. The landlord should also consider commercial repercussions if they insist on continuing a deceased tenant’s tenancy.

What happens if a surrender of the tenancy cannot be agreed upon?

Fixed term tenancies (within the term) – If surrender is not agreed upon, the tenancy passes to the tenant’s estate and the landlord can serve a section 8 notice to seek possession, providing that possession proceedings have started no later than 12 months after the tenant’s death.

Periodic tenancies –  If surrender is not agreed upon, the tenancy passes to the tenant’s estate and the landlord can serve a section 21 or a section 8 notice to end the tenancy.

Who has authority over a tenant’s estate after they die?

When a tenant dies, the landlord must first discover who has the legal authority to act on the tenant’s behalf. This would be the executor named in the will if there was one. If there was no will, no named executor, or the named executor declines to act, the tenancy is transferred temporarily to the Public Trustee. The Public Trustee is a public office in the UK that performs the role of trustee of an estate in these circumstances.

The landlord should obtain proof of authority to act from the relevant person before dealing with them in relation to the tenancy. If a landlord deals with a person they falsely believe to have authority, then any agreement made or charges paid may not be upheld.

Making a deduction from the tenant’s deposit

When the tenancy is brought to an end, the landlord can choose to make a deduction from the tenant’s deposit, but they should agree to seek deductions with the person in charge of the tenant’s estate. If this happens, there should be a written deed of surrender which details how the deposit will be dealt with.

If an agreement cannot be reached about who receives the deposit or how the deposit is split, the landlord will have to make a court claim against the estate or use the dispute resolution service of the deposit protection scheme. In this case, the authorised person will take the position of the tenant.

We hope this article has brought some clarity on what the actions are likely to be when a sole tenant dies during an assured shorthold tenancy. If you have further questions or need advice, you can speak to our landlord and tenant team.

The content of this article is for information purposes only.  Whilst we try to ensure that it is accurate we do not warrant or guarantee that this is the case, nor do we accept any responsibility in the event that it is relied upon.  The information is not intended to be a substitute for legal advice which you are recommended to obtain.