Goodspeed: Landlord can keep security deposit of deceased tenant

LINDA GOODSPEED
CORRESPONDENT
When a tenant passes away, the tenant's estate assumes responsibility for all of the late tenant's affairs and possessions, etc.

QUESTION: I'm writing to you about a security deposit which my sister's landlord has retained because my sister passed away last month and the landlord said she broke the lease which runs through the end of next May. Is this allowed? If a tenant dies before the lease expires is that considered breaking the lease?

ANSWER: With all due respect (something your late sister's landlord could sure use), the answer, technically, to your question is “Yes.” Dying in the middle of a tenancy constitutes breaking the lease.

When a tenant passes away, the tenant's estate assumes responsibility for all of the late tenant's affairs and possessions, etc. Until the estate can make arrangements to have the tenant’s possessions removed, nobody else has a right to occupy the unit. 

Once the deceased tenant's possessions are claimed and removed by the estate, the owner is then free to put the unit back on the market. The owner is also free to apply the deceased tenant's security deposit toward any loss of rent the owner may suffer until the unit can be rented again.

The owner does have an obligation to make a reasonable effort to minimize his damages - i.e. getting the unit back on the market as quickly as possible. But even in a strong rental market, I think it is reasonable to expect to take at least a month to get the unit rented again.

The owner is entitled to apply your deceased sister's security deposit towards that month's rent or any amount of unpaid rent that results because of her death. Likewise, the owner may also apply the security deposit toward the repair of any damages done to the unit or toward any unpaid tax escalator.

In summary, even in the event of death, a security deposit is still a security deposit. Dying is not a reason in itself to get the security deposit back. Just by virtue of your sister passing away does not prohibit the owner from applying the security deposit against any damages the owner may suffer as a result of the unfortunate interruption of the tenancy.

I will say, however, that even though the landlord has every right to use your sister's security deposit, he or she has absolutely no right to be so callous and disrespectful of your loss. Saying your sister broke her lease by dying is really uncalled for. A little tact would be helpful.

Linda Goodspeed is a longtime real estate writer and author of “In and out of Darkness.” Email her at: lrgoodspeed@comcast.net.