Managing residential tenancies after the death of a tenant

A recent REIQ article discussed the complexities of managing residential tenancies following the death of a lessor. This article considers the alternative scenario, where there has been a death of a tenant or co-tenant, and the obligations and processes that follow.

In the event of the death of a tenant, property managers are left to navigate a range of legal obligations pursuant to the Residential Tenancies and Rooming Accommodation Act 2008 (Qld) (the RTRA Act), whilst simultaneously managing the sensitivities of dealing with the deceased tenant's personal representative or next of kin, the lessor's expectations regarding the future of the tenancy, and the practical management of any belongings left behind at the property.

Types of tenancies

Section 13 of the RTRA Act defines a tenant as a person who has the right to occupy a residential property under a residential tenancy agreement. This includes the tenant’s personal representative. According to the Acts Interpretation Act 1954 (Qld), a personal representative of a deceased individual means the executor or administrator of the deceased person's estate.

Upon the death of a tenant, an administrator or an executor will be appointed to act on behalf of the deceased. In addition to managing the legal and administrative affairs of the deceased, this person is also responsible for certain aspects of the tenancy, including removing any belongings left behind at the rental property. The processes and obligations that arise will differ depending on whether the deceased was a sole tenant or a co-tenant.

Where a tenancy involves more than one tenant (co-tenants), both co-tenants would have entered into a general tenancy agreement naming them as tenants. However, not all tenancy arrangements are the same, and the distinction between a joint tenancy and tenants in common is particularly significant upon the death of one of the tenants.

A joint tenancy arises where two or more persons enter into the same residential tenancy agreement together and are expressly named as joint tenants under that agreement. In Queensland, pursuant to Part 2 of the Standard Terms of the Form 18a General Tenancy Agreement, parties to a residential tenancy agreement will automatically be tenants in common unless it is otherwise stipulated that the parties are joint tenants in the special terms of the residential tenancy agreement.

Upon the death of one joint tenant, that tenant's interest is generally regarded as passing automatically to the surviving joint tenant/s by operation of the common law right of survivorship.^[1] The tenancy continues in the name of the survivor.

Death of a sole tenant

Section 277 of the RTRA Act outlines the ways in which a residential tenancy can end, which includes the death of the tenant (if they are a sole tenant).

Pursuant to section 324A(1) of the RTRA Act, if a sole tenant dies, the residential tenancy agreement ends on the earlier of the following days:

• 14 days after the tenant's personal representative or relative gives the lessor written notice that the agreement ends because of the tenant’s death;
• 14 days after the lessor gives the tenant's personal representative or relative written notice that the agreement ends because of the tenant’s death;
• the day agreed between the lessor and the tenant’s personal representative or relative; or
• the day determined by the Queensland Civil and Administrative Tribunal (QCAT) on application by the lessor.

However, in circumstances where no notice is given, or no agreement or application is made, section 324A(2) of the RTRA Act provides that the residential tenancy agreement ends one month after the tenant’s death, or if the agreement is a short tenancy (moveable dwelling), two days after the tenant’s death.

Importantly, section 324A(3) of the RTRA Act allows a notice given by the lessor or the tenant’s personal representative or relative to be withdrawn so that a day for the residential tenancy agreement to end can be agreed between the lessor and the tenant’s personal representative or relative pursuant to section 324A(1)(c) of the RTRA Act.

Before taking instructions from a personal representative of a deceased tenant, property managers should ensure that they are provided with sufficient documentary evidence to confirm that the representative is the executor or administrator of the deceased tenant's estate. Property managers may need to seek written confirmation of the executor or administrator from the tenant's legal representative.

Death of a co-tenant

Pursuant to section 244 of the RTRA Act, where co-tenants are not stated under the agreement to be joint tenants and one of the co-tenants die, the deceased’s interest in the tenancy ends and the agreement continues in force with the parties to the agreement being the lessor and the other co-tenant/s.

Importantly, section 244(3) of the RTRA Act provides that any right (including, in particular, a right relating to a rental bond) or liability of the deceased existing immediately before the deceased death’s is not affected. Accordingly, a deceased tenant's rights or liabilities (including the rental bond) are not affected by the tenant's death. The deceased tenant's estate will therefore be able to claim the tenant's rental bond.

If continuing the residential tenancy agreement would be impractical for the co-tenant or cause the co-tenant excessive hardship, then, pursuant to section 307B of the RTRA Act, the co-tenant may give the lessor a notice of intention to leave the property because of the death of the co-tenant. The co-tenant is required to give a minimum notice period of 14 days.

Other considerations

The deceased tenant’s personal representative will also be responsible for removing any of the deceased’s tenant’s belongings left behind at the rental property. Property managers should ensure that access to the property for the purpose of removing the deceased's personal belongings is only provided to the deceased's personal representative and no other person should be permitted to enter the property or remove any items until that authority has been confirmed.

In the event that the death of a tenant results in damage to the property, property managers should ensure that the personal representative of the deceased person is aware of the damage to the property and the rectification costs.

In circumstances where a tenancy is ongoing after a co-tenant's death, the co-tenant's obligations pursuant to the tenancy agreement and section 188 of the RTRA Act will continue, and as such, it may be possible for the lessor to make a claim on the deceased tenant's estate for any damage to the property.

Best practice advice for property managers

The death of a tenant gives rise to a range of legal obligations and practical considerations that require prompt attention by property managers. It is important for property managers to ensure that they are provided with sufficient documentary evidence to verify the identity of the personal representative of a deceased tenant.

Regardless of the tenancy type, property managers should act promptly upon notification of a tenant’s death to ensure compliance with the relevant legislative requirements and keep detailed records of all communications with the lessor, any co-tenants and the deceased tenant’s personal representative.

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