When a Tenant Dies

by TSSA Legal Counsel

Do you know what to do when a tenant dies? With the help of this blog post, you may be better prepared for such a tragic event. These suggestions reflect the realities and risks to be avoided in Texas.

1. Who is liable for the deceased tenant's rent? 

The estate of a deceased tenant continues to be liable on the rental agreement for payment of rent, damages, late charges, etc., throughout the remainder of the rental agreement term. Technically, the representatives of the deceased tenant’s estate must give 10 days’ notice of rental agreement termination, just as the tenant himself would have had to do.

2. Can you exercise your contractual lien?

If rent is delinquent at death or becomes delinquent thereafter, you can still exercise your landlord’s lien under either circumstance (if you are using the TSSA Self-Service Storage Rental Agreement). But do not do so without first consulting your attorney. There may be a waiting period before you can exercise your foreclosure rights. The probate process may be rather lengthy depending on the case (i.e, several months), so consulting with an attorney on the proper procedures is recommended.

3. Is it risky to turn over the deceased tenant’s property to others?

Turning over the deceased tenant’s property to third persons can be dangerous. What if such persons are not who they say they are, or what if they are not lawfully entitled to the property? In Texas, sometimes even surviving spouses and children are not entitled to the deceased tenant’s property. The law says that you are liable if you give the property of a deceased tenant to the wrong person.

4. Use the TSSA Rental Agreement.

Use the TSSA Rental Agreement, which contains a provision in paragraph 1 authorizing you to turn over the tenant’s property to a specifically named “emergency contact” person upon the tenant’s death, serious illness, accident or incarceration if that person signs an affidavit (see TSSA form MISC-2). Additionally, regardless of whether the tenant named a specific “emergency contact” person in the lease, if one of the following persons signs this affidavit, you may also, at your option, provide them access: Tenant’s brother, sister, spouse, parent, child over 18 and (only in lease forms dated 2012 or later) estate executor. It would be a good idea to ask for a death certificate or newspaper obituary article to be sure the tenant has, in fact, died. Remember, it is your right, not your obligation, to turn over the property to the emergency contact. If former girlfriends, boyfriends, ex-spouses, estranged spouses, or “friends of the family” show up to claim the property, BEWARE. Unless they are listed as the “emergency contact” person in paragraph 1 of the TSSA Rental Agreement, do not make a move without checking with your immediate superior or your lawyer. A handy excuse to use for not turning the property over to a claimant is to tell the claimant, “I could be held liable if I give it to the wrong person.” Indeed, this is the truth, especially if a tenant bequeathed his belongings to another person under a will to another person or if his will is contested.

5. What if the tenant had a will?

Even if you are given a copy of the tenant’s will, it is still not safe to turn over the property to anyone except the “emergency contact” person named in paragraph 1 of the TSSA Rental Agreement. The reason is that the will may have been revoked, forged or contested. Exercise restraint and care in relying on a will. When in doubt, call your lawyer or insist on a copy of a court order probating the will.

6. Should you insist on an indemnity agreement?

If the person to whom you turn the property over has not been named in paragraph 1 of the TSSA Rental Agreement, it is always advisable to require such person to indemnify you against all claims of others regarding the property, using a form like TSSA form MISC-2. Be sure to get any indemnity agreement dated and signed. If the claimant is not willing to indemnify you, do not give him the deceased tenant’s property. If you are turning the property over at the request of someone’s lawyer, demand that he also sign an indemnity agreement. If he won’t sign, something is amiss.

7. What if non-tenants have access after the tenant’s death?

Even if the facility owner knows that the tenant has died, the facility owner cannot and should not prevent access to the storage unit by anyone who has the facility access code and a key to the deceased’s tenant’s storage unit. The facility owner is not liable to the tenant’s heirs or surviving spouse, etc., if property is removed after the tenant’s death by such third persons.

8. Can you insist on identification?

The “Ground Rules” in paragraph 37 of the TSSA Rental Agreement give the facility owner the right to insist upon proper identification of anyone on the premises of the storage facility. If the facility owner is concerned, he should notify the emergency contact person listed in paragraph 1 of the TSSA Rental Agreement.

9. How to give notice to a deceased tenant’s estate.

Address any letters to the “Estate of [tenant’s name], c/o Administrator or Executor of the Estate.” On the inside address of the letter, show that it is being sent to the tenant’s address and to the address of the administrator or executor. Also, show a copy going to the emergency contact person shown in paragraph 1 of the TSSA Rental Agreement.

 

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