• Lawrence Talbot

What do you when an assured shorthold tenant dies?

The query below concerned the position where there was a joint tenancy, one of the tenants moved out but the other still living in the property had died.

"Where do I stand in terms of the rent that is due for this current month and later months – they were on an AST? If the lease is still in joint names, can I go to the separated husband for payment until they vacate the property? Or does the estate of the deceased have an obligation to pay the rent until they have given notice and I do?"

Clearly, if the remaining joint tenant does not want to live in the property, it is in everyone's interest for him to surrender but what is the position as a matter of law?

Our view was as follows:

If no assignment has been made of the tenancy from joint names into the sole name of the gentleman, under the doctrine of "survivorship", upon the death of the lady, the gentleman becomes the sole tenant - it is only where a sole (or sole surviving) tenant dies that the tenancy passes to the Estate. However, he is not living in the property as his only or principal home so the tenancy loses its "assured status" because as per the requirement in s.1 of the Housing Act 1988 he is not "living in the property as his only or principal home". Assuming it is a periodic tenancy, you can serve a Notice to Quit (NTQ), giving 4 weeks notice expiring on a last day of a period of the tenancy and then issue a possession claim. However, if the gentleman moves back into the property the tenancy could regain its assured status and the NTQ would be of no effect, so you need to serve a s.21 notice giving 6 months' notice marked "without prejudice to the NTQ" as well. You should seek to contact him to establish his intentions as per the above first . Because the tenancy was a joint tenancy, he was jointly and severally liable for all of the rent prior to the death of the other tenant and is now liable for any arrears and any future payments of rent. If he does not want to live in the property it will be in his interest to arrange to terminate as soon as possible. The terms of the tenancy may make provision for a period of notice required to be given by a tenant but as landlord it is open to you to accept an earlier period if you so choose.

More to follow...

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