When a tenant passes away, landlords often face questions of what to do with the apartment and how to respond to family members and next of kin during such an emotional time. There is also the difficult situation of handling a tenant who has become ill, infirm, and/or needs to terminate his/her tenancy early to transfer permanently to a nursing or assisted living home. Under the law, there are certain requirements that a tenant or next of kin must follow to provide for a smooth transition in such times.
Death of Tenant
The law in New Jersey provides that any lease for one year or more may be ended before it expires if the tenant or tenant’s spouse dies. The landlord must be given written notice of the lease termination by the tenant or the tenant’s executor or administrator, or the surviving spouse if the names of both spouses are on the lease. The lease termination becomes valid 40 days after the landlord receives written notice if: (1) the rent owed up to that point has been paid; (2) the property is vacated at least five working days before the 40th day; and (3) the tenant’s lease does not prohibit early termination upon the tenant’s death. See N.J.S.A. 46:8-9.1 et seq. Therefore, a landlord must review the lease to see if there are any provisions regarding what happens if the tenant passes away mid-lease.
A deceased tenant’s property can only be picked up by an authorized party, i.e., an executor, administrator, or estate beneficiary, and a landlord should request proof of same, including a photo ID. The decedent’s possessions and lease agreement should remain intact until the authorized party picks up the items and/or terminates the lease. Additionally, the landlord must return or account for the security deposit within 30 days after the termination of the tenancy. There is a difference between termination and the surrender of possession. The security deposit law (N.J.S.A. 46:8-21.1) starts the 30 days upon termination of the tenancy.
Illness or Accident of Tenant
In the event of a tenant becoming ill, infirm, or needing to terminate his/her tenancy early to permanently enter an assisted living facility, the law has requirements for the tenant to follow. Pursuant to N.J.S.A. 46:8-9.2, a tenant may terminate a lease prior to the expiration date for certain reasons.
One reason for lease termination before expiration is when the tenant/spouse/both suffer a disabling illness or accident. (N.J.S.A. 46:8-9.2(a)). The tenant is required to provide written notice of termination of the lease and must provide certification from a treating physician that the tenant/spouse is unable to continue to engage in gainful employment. Further, the tenant must provide proof of loss of income and proof that any pension, insurance, or other subsidy the tenant/spouse is entitled is insufficient to supplement the income so that the rent can be paid.
A second reason for lease termination before expiration is if the tenant/spouse/both, one of whom shall be age 62 or older is accepted into an assisted living facility, nursing home or continuing care retirement community. (N.J.S.A. 46:8-9.2(b)). The tenant must provide certification of a treating physician for the need of such assisted living and documentation that lessee/spouse has been accepted into such a facility.
Under Section 46:8-9.2(c), a tenant can terminate his/her lease early if the tenant/spouse, one of whom is 62 years or older, is accepted into low or moderate income housing; as long as the tenant is not currently residing in low to moderate income housing currently. The final option to allow for termination of the lease prior to the expiration date is if the dwelling is not handicap accessible. The tenant must supply certification from a licensed physician that the tenant/spouse or a member of the household is handicapped and the handicap is not likely to be temporary. (N.J.S.A. 46:8-9.2(d))
Early terminations for the reasons stated above shall take effect on the fortieth (40th) day following the receipt by the landlord of the written notice, and the rent shall be paid up to the time of termination, at which time the lease shall cease and come to an end. The property must be vacated and possession shall be turned over to the landlord at least five (5) working days prior to the 40th day following receipt by the landlord of written notice.
Death of Tenant
In general, when a tenant dies in New York, landlords may expose themselves to liability by granting unauthorized individuals access to the apartment or by removing the property of the deceased from the apartment. Only a duly appointed executor/executrix (designated in a will) administrator (if there is no will) or public administrator (if there no will and no known heirs) is permitted to enter the apartment and dispose of the decedent’s personal property. Children and other relatives of the tenant may not have authority to remove property from the apartment. If an administrator or executor has not been appointed by the New York Surrogate’s Court, and no one has taken possession of the apartment, the landlord can institute eviction proceedings three (3) months from the date of death. The eviction notice, notice of petition, and petition must be served on:
1) The surviving spouse, if any, otherwise on:
2) A surviving child, if any, otherwise on:
3) One of the other distributes (those who would inherit if there was no will, i.e., grandchildren, parents, nieces/nephews)
4) If there are no known heirs, the public administrator should be contacted for guidance.
If no one answers the eviction petition and you get a judgment for possession, the property in the apartment can be disposed of like any other abandoned property in accordance with New York law.
The estate of the decedent is liable for the remaining balance on the term of the lease. If there is an unexpired lease, the executor, administrator or legal representative of the decedent may request that the landlord consent to an assignment of the lease or subletting. The request must be accompanied by the written consent of any co-tenant or guarantor of the lease and state the name, business and home address of the proposed assignee or sublessee. Within 10 days after the mailing of the request, the landlord may ask for additional information. Within thirty days after the mailing if the request or the additional information requested by the landlord (whichever is later), the landlord must send the notice of his election to terminate the lease or to grant or refuse consent. The landlord’s failure to send such a notice will be deemed to be a consent to the proposed assignment or subletting. If the landlord consents, the estate of the deceased tenant and any other tenant still remain liable for performance of the tenant’s obligations under the lease.
If the landlord terminates the lease or unreasonably refuses to consent, the lease shall be deemed terminated and the estate of the deceased tenant and any tenants thereunder are discharged from further liability as of the last day of the calendar month during which the landlord was required to exercise his option. If the landlord reasonably refuses to consent (for example if the person who was seeking to occupy the apartment did not have the means to pay), the lease shall continue in full force and effect subject to the executor’s right to make further requests for consent to try and get someone else more qualified to assign the lease or sublet to. All requests, notices or communications must be sent by registered or certified mail.
If there are damages to the apartment and/or unpaid rent, the landlord should file a proof of claim in Surrogate’s Court and serve it on the executor or administrator within seven months of when he is appointed by the court.
Illness or Accident of Tenant
Termination of a residential lease by a lessee is allowed in specific situations in the state of New York. The Real Property Law §227-a covers the termination of a lease by senior citizens moving to a residence of a family member or entering certain health care facilities, adult care facilities or housing projects. This statute applies to the early termination of residential leases in which the tenant, or husband/wife of the tenant, who is at least 62 years old, or will attain this age during the lease term.
Termination before expiration of the lease is permitted when the tenant is certified by a physician as no longer able, for medical reasons, to live independently in such a premises and requiring assistance with daily living activities and will move to a residence of a member of his or her family. (RPL §227-a(1)(a)). Furthermore, a tenant is authorized for early termination when they are notified of an opportunity to commence occupancy in an adult care facility, residential health care facility, or a housing unit which receives substantial assistance of grants, loans or subsidies from any federal, state or local agency or instrumentality, or any non-profit philanthropic organization one of whose primary purposes is providing low or moderate income housing, or in a less expensive premises in a housing project or complex erected for the specific purpose of housing senior citizens. (RPL §227-a(1)(b)). If either of these scenarios applies and proper documentation is provided, the landlord must release the tenant from any liability to pay any rent or other payments in lieu of rent for the time subsequent to the date of termination of such lease. The landlord must also adjust to the date of surrender any rent or other payments made in advance or which have accrued by the terms of such lease. (RPL §227-a(1)).
Any such termination as indicated above must be in writing and delivered to the landlord or owner’s agent. Termination shall be effective no earlier than thirty (30) days after the date on which the next rental payment subsequent to the date when such notice is delivered is due and payable. Such notice will be deemed delivered five days after mailing. (RPL §227-a(2)). Moreover, the landlord is required to provide, in writing, an explanation of a tenant’s right to terminate the existing lease and all applicable requirements and duties thereto.
The information in this Client Alert is provided solely for information purposes. It should not be construed as legal advice on any specific matter and is not intended to create an attorney-client relationship. The information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based upon particular circumstances. Each legal matter is unique, and prior results do not guarantee a similar outcome.
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