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Recovering possession after a tenant dies.

Recovering possession after a tenant dies

When a rent regulated tenants dies, the building owner is often left with myriad legal complications. These complications will vary depending upon whether the tenant occupied a rent-stabilized or rent-controlled unit.

Death of a Rent-Stabilized


When a rent-stabilized tenant dies, the most important thing to remember is that the tenant's lease does not die with him. The lease represents a separate contractual obligation that survives the death of the tenant; it continues until the expiration of the lease term. Assuming, then, that a rent-stabilized tenant has died, and there is no one else occupying the apartment, the first thing the landlord must do is determine whether or not the tenant has an estate, or there are next of kin.

The law allows for the estate of a deceased rent-stabilized tenant to maintain control of the apartment until the expiration of the lease or renewal of the lease agreement. This does not mean that the estate may use the apartment for living purposes. On the contrary, if the rent-stabilized tenant was occupying the apartment alone, no individual may situate themselves in the apartment, unless, of course, he has permission of the landlord.

Section 711 (2) of the Real Property Actions and Proceedings Law provides that "when a tenant has died while his lease is in effect and you do not receive rent, and there has not been the appointment of a representative such as an administrator executor, and no representative or person has taken possession of the premises, a non-payment proceeding can be started after three months from the date of death of the tenant by suing a surviving spouse, if there is one, or, if not, then one of the surviving issue or any of the distributees of the dead tenant." In this situation, the landlord is given the opportunity to sue next of kin to the tenant to collect rents for the apartment, and, in many instances, negotiate for return of the apartment to the landlord's possession prior to the expiration of the lease.

Owners must also bear in mind that an executor of an estate of a deceased tenant has the right under RPL Section 236 to request of the landlord permission to sublet and/or assign the lease of a deceased tenant. This provision is markedly different from Real Property Law (RPL) Section 226-(b) on subletting rights of living tenants, though. In brief, RPL Section 236 does allow the landlord to terminate the lease, and does allow him to reject any sublet or assignment request.

Death of a Rent-Controlled Tenant

When the tenant of a rent-controlled apartment dies, certain considerations must also be made:

First, assuming that the apartment has been left empty, the owner should immediately determine whether an estate has been formed, and contract the executor or administrator of that estate. He should begin by checking records in Surrogate's Court to determine whether or not any probate filings have been made. These filings will show if a will has been offered for probate, and/or whether any individual has requested letters of administration in reference to the estate of the deceased person.

Should a Surrogate's Court check turn up empty, another avenue of investigation is to attempt to communicate with the hospital where a tenant died or, if applicable, check police reports to determine who claimed the body. There are many instances where a landlord contacts an individual through these means, and can shortly thereafter arrange for the return of possession of an apartment.

In the interest of good taste, the landlord should begin by sending a letter of condolence to the executor of the estate or an individual who is handling the affairs of the deceased. After extending condolence, and a reasonable period of time has passed, it should lested that the involved individual contact the managing agent or the property manager to discuss the relinguishment of the apartment. The owner should also indicate therein the date by which it would be expected that the apartment shall be surrendered.

No Estate

If a deceased tenant (rent stabilized or controlled) has neither an estate, nor next of kin, the owner may face numerous obstacles attempting to recover possession of the apartment. In such a situation, the owner must petition the Surrogate's Court for the appointment of a public administrator to facilitate recovery of the apartment. This proceeding can be time-consuming, and is best accomplished by retaining counsel.

Sealing Off

In cases where the death of a tenant results in the police sealing an apartment, the owner should remember that he is not permitted to unilaterally break the seal on the apartment. On occasion, after the police have completed their investigation, they will unseal the apartment themselves. The owner must, then, follow the steps discussed above to recover possession. Should the police not unseal the apartment within a reasonable time frame, and efforts to deal with the police prove unavailing, an owner is relegated to commencing an action in Surrogate's Court to arrange for the unsealing of that apartment via the appointment of the Public Administrator.


No examination of the situation created by the death of a tenant would be complete without mentioning "self-help." Many owners, upon the death of a tenant, are confronted with a situation in which there are no family members or other individuals to contact; there are no friends or next of kin to be reached; and the apartment remains untouched and unchanged for months following the death of their tenant.

In this situation, owners often inquire as to whether they may store the possessions found in the apartment, and take possession of the apartment without resort to any legal action. This course of action is very risky. An owner, of course, can make the business decision to retake possession of an apartment that he believes no individual will ever come forward to assert any claim or relationship to in the future. In a rent-controlled apartment situation, the owner is much better advised to proceed in Surrogate's Court to have the public administrator appointed to facilitate the return of the apartment. In a rent-stabilized apartment situation, the owner must, once again, remember that the death of the tenant does not terminate the lease agreement between that owner and the tenant; therefore, any retaking of possession of that apartment without resort to legal proceeding can expose the owner to a wrongful eviction suit.

For any owner, it is always advisable to contact an attorney. He will be able to review and explain the specific details the situation confronting you upon the death of your tenant.
COPYRIGHT 1992 Hagedorn Publication
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992, Gale Group. All rights reserved. Gale Group is a Thomson Corporation Company.

Article Details
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Title Annotation:Insider Outlook
Author:Mitofsky, Joe
Publication:Real Estate Weekly
Article Type:Column
Date:Jan 22, 1992
Previous Article:What to do when your insurance runs out.
Next Article:NYC co-ops/condos hit not so hard in '91.

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