What happens to a lease when the tenant dies? Is it automatically broken? Does that person's family have to pay the balance or unpaid rent? Can heirs take over the lease?
Typically, the estate of the tenant will take over, our experts say, but if there is no estate in place, there are a few possible alternative courses of action.
"In the event of death of the primary tenant, the estate is responsible for the lease and future rent payments," says Dennis Hughes, a broker with Corcoran. "However, many landlords will end the lease once all remaining belongings of the deceased have been removed."
If the tenant hasn't left a will, however, the matter may need to go to surrogate's court, which will determine whether a family member could be appointed administrator of the estate. That administrator may then enter the apartment and dispose of the tenant's property. They'd also be considered liable for paying rent until the end of the lease term, but as Hughes points out, most landlords will allow them to give up the apartment.
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If the tenant's family wants to take over the lease, they have to follow certain legal proceedings.
"The estate can 'occupy' the apartment, but it's a legal occupancy, not a physical possession," says Sam Himmelstein, a lawyer who represents residential and commercial tenants and tenant associations (and FYI, a Brick sponsor). "The administrator can't live in the apartment or put someone in it."
There is an exception to this law for family members who were living with the tenant while they were alive. In this case, they can continue to occupy the apartment for the duration of the lease. If the apartment in question is rent-stabilized, a family member may take it over if they qualify for succession rights.
In other cases, it is up to the landlord's discretion.
"Regarding heirs taking over the lease, it is case by case, and in the event the landlord permits the heir to take over, the heir is subject to the same qualifying standard as the primary tenant," Hughes says.
Under New York state real property law, the tenant's estate can also request an assignment of the lease to a subletter, thus freeing them from the obligation of paying rent for the rest of the lease's term.
"An estate can sublet the lease, but you can't do it without the landlord's knowledge and consent," Himmelstein says. "And if they unreasonably refuse consent, the lease is deemed terminated."
Finally, if no family member comes forward, the landlord can have a public administrator named by surrogate's court, and have the apartment returned to their possession.
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