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tenancy

What happens if a sole tenant passes away?

Key Takeaway

When a sole tenant in New Zealand passes away, the tenancy does not automatically terminate. The landlord must follow a legal process, typically by giving notice to the deceased tenant's personal representative or applying to the Tenancy Tribunal. The tenant's estate remains responsible for rent and clearing the property until the tenancy officially ends, and specific rules apply to goods left behind.

What Happens When a Sole Tenant Passes Away?

The passing of a sole tenant in a residential tenancy can create a complex situation for both the landlord and the deceased's estate. In New Zealand, the Residential Tenancies Act 1986 (RTA) outlines the legal framework for how these situations are managed, focusing on clear termination processes, financial responsibilities, and the handling of property left behind.

Tenancy Does Not Terminate Automatically

Contrary to common belief, a residential tenancy agreement in New Zealand does not automatically terminate upon the death of a sole tenant. The tenancy continues until it is formally ended in accordance with the Residential Tenancies Act 1986 [Source: Residential Tenancies Act 1986, s 53]. If there were other tenants on the agreement, the tenancy would generally continue for them, and this information specifically applies to sole tenants.

Terminating the Tenancy After a Sole Tenant's Death

The landlord is responsible for initiating the termination process. The Residential Tenancies Act 1986 provides specific steps:

  • Notice to Personal Representative or Close Relative: If the landlord is aware of a personal representative (an executor named in a will or an administrator appointed by the court for the deceased tenant's estate) or a close relative, the landlord may terminate the tenancy by giving notice to that person [Source: Residential Tenancies Act 1986, s 53(2)].
  • Notice Period: The notice must state a termination date that is not earlier than 10 working days after the date on which the notice is given [Source: Residential Tenancies Act 1986, s 53(3)]. The tenancy then terminates on the specified date [Source: Residential Tenancies Act 1986, s 53(4)].
  • Reasonable Efforts: The landlord must make reasonable efforts to find and ascertain the identity and address of any personal representative or close relative of the deceased tenant [Source: Residential Tenancies Act 1986, s 53(5)].
  • Application to the Tenancy Tribunal: If, after making reasonable efforts, no personal representative or close relative can be identified or found, the landlord may apply to the Tenancy Tribunal for an order terminating the tenancy [Source: Residential Tenancies Act 1986, s 53(6)]. The Tenancy Tribunal is an independent judicial body that resolves disputes between landlords and tenants under the Residential Tenancies Act 1986. The Tribunal can make an order terminating the tenancy and specify the termination date [Source: Residential Tenancies Act 1986, s 53(7)].

Obligations of the Deceased Tenant's Estate

The estate (the total property, assets, and liabilities left by a deceased person) of the sole tenant remains responsible for certain obligations until the tenancy is legally terminated and the premises are cleared. These obligations include:

  • Rent Payments: The estate is liable for rent payments up until the date the tenancy officially terminates [Source: Residential Tenancies Act 1986, s 24].
  • Condition of the Premises: The estate is responsible for ensuring the premises are left reasonably clean and tidy, and for any damage beyond fair wear and tear, as required of a tenant upon termination [Source: Residential Tenancies Act 1986, s 21, s 40(1)(e)].
  • Clearing Personal Belongings: The personal representative or family members are responsible for removing the deceased tenant's personal belongings from the property.

Disposal of Goods Left on Premises

If goods or chattels belonging to the deceased tenant are left on the premises after the tenancy has terminated, the landlord must follow specific procedures outlined in the Residential Tenancies Act 1986:

  • Identify Owner: The landlord must make reasonable efforts to ascertain the identity and address of the owner of the goods [Source: Residential Tenancies Act 1986, s 61(1)].
  • Perishable or Uneconomical Goods: If the goods are perishable or if the cost of storing them would be unreasonable given their value, the landlord may dispose of them after 2 working days if they have been unable to contact the owner [Source: Residential Tenancies Act 1986, s 61(3)].
  • Other Goods: For all other goods, the landlord must store them for at least 35 working days [Source: Residential Tenancies Act 1986, s 61(4)]. If the owner has not claimed the goods within this period, the landlord may then dispose of them [Source: Residential Tenancies Act 1986, s 61(5)].
  • Application of Proceeds: Any money obtained from the disposal of goods may first be used to cover the costs of storage and disposal, then any outstanding rent owed by the deceased tenant. Any remaining money must be paid to the owner of the goods [Source: Residential Tenancies Act 1986, s 61(6)].
  • Tenancy Tribunal Order: The landlord may also apply to the Tenancy Tribunal for an order regarding the disposal of any goods left on the premises [Source: Residential Tenancies Act 1986, s 53(8), s 61(2)].

Bond Refund

The bond paid by the deceased tenant is held by Tenancy Services [Source: Residential Tenancies Act 1986, s 18(1)]. Once the tenancy is terminated, the premises cleared, and any final inspections completed, an application for the release of the bond can be made. The personal representative of the deceased tenant's estate would typically apply for the tenant's share of the bond, subject to any deductions for unpaid rent or damage [Source: Residential Tenancies Act 1986, s 22A, s 22B, s 22C].

When to Seek Independent Legal Advice

Situations involving the death of a tenant can be legally intricate. Parties should consider seeking independent legal advice to understand their specific rights and obligations, particularly regarding the administration of the deceased's estate or if disputes arise. Assistance can be obtained from legal professionals or Community Law Centres for free legal advice.

Key Resources