Q: We’re facing a situation that’s pretty unbelievable. My mother-in-law passed away in her apartment on the day rent was due. My wife found her that day, and notified management immediately. We cleaned out the apartment within a few days, and were shocked to learn that management expects us to pay that month’s rent! Can this be right? –Alan J.
A: As cold-hearted as it appears, management’s demand for rent is probably legal. But that rent should come out of your mother-in-law’s estate, not your pockets. By law, any debts owed by a deceased person must be paid by the estate, and then the remaining assets are distributed according to the will or trust, or according to your state’s laws of intestate succession, if there’s neither a will nor a trust.
But beneficiaries are not directly liable for these debts unless, of course, they were jointly responsible for them in the first place. If there’s no money in the estate, then the landlord loses out.
On a practical level, it’s fair for the landlord to expect rent while you and your wife were emptying the apartment. During that time, the unit was tied up and could not be cleaned or readied for the next resident. Is it fair for the landlord to absorb this cost when the ex-tenant’s estate could cover it? Under the circumstances, the landlord certainly could have shown a little compassion and asked for only enough rent to cover the few days you were working in the unit.
Many states have laws that specify what happens to a lease when a tenant dies. California, for example, differentiates between a deceased tenant with a lease and one with only a month-to-month rental agreement. If there’s a lease, the tenant’s death does not terminate the lease. Instead, landlords must treat the situation as if the tenant had moved away during the lease term, without a legal justification. These landlords must make reasonable efforts to re-rent, and once the unit is occupied, the estate’s responsibility for the rent ends.
With month-to-month tenants, the estate’s responsibility for the rent will end 30 days after the tenant had last paid rent. This is welcome news for you if your mother-in-law was a monthly tenant in California, because it would mean that the tenancy terminated on the precise day she died.
To spin this out a bit further, when you cleaned and emptied the apartment, you were technically trespassing, but apparently your presence was tolerated by management. That fact doesn’t obligate you to pay rent. To find the exact answer to your question, as you can see, you will have to find out how your state treats leases and rental agreements when the tenant dies.
Q: I’ve just found out that one of my tenants was convicted of assault, in connection with street-gang activity. I think he’s getting a jail sentence, then he’ll be out. I want to know if I can terminate his lease for illegal behavior. The offense took place downtown, not on my property. –Mary G. …CONTINUED
A: There’s no question that you’d be able to evict if the offense had occurred on your rental property. Under the laws of every state, when a tenant uses the premises for an illegal act, the landlord can terminate. Even here, however, there are some gray areas. If the tenant were selling drugs from the living room or using the kitchen as a meth lab, that would clearly give a landlord grounds to terminate.
But suppose the tenant makes a drug-related phone call from his residence, or writes a bad check at the kitchen table — are these acts enough to support an eviction? You’d probably find many judges who would say yes, reasoning that the shelter of the rented home was an essential ingredient in the illegal act, even though the property itself was not physically used or damaged, and other tenants were not put in danger.
After the phone call comes the drug hand-off at the front door or in the garage, they’d reason, and there and then you’d find the property seriously involved in the crime. Better to rid rental property of law-breaking tenants who use the property even marginally in their pursuits.
But what about tenants whose dirty deeds occur off-premises? Here the link between the tenant’s illegal act and harm to the property and other tenants is much less clear. Savvy criminals, in fact, will keep home and "work" carefully segregated, and behave as model tenants and neighbors to avoid attracting attention.
But some argue that landlords should be entitled to evict these criminals, too. Even if tenants are trying to keep their home lives clean, the criminal world often invades the domestic one, with disastrous consequences.
State laws on termination for illegal acts on the premises don’t generally address off-premises illegal behavior. Interestingly, a bill pending in Arizona, state Senate Bill 1277, would specifically allow for termination if the tenant is convicted of specified crimes that occurred off-site.
The listed offenses include serious things like murder, prostitution, and drug manufacture and sales, but the list isn’t exhaustive — other offenses could count. When a state like Arizona, which is generally landlord-friendly, sees the need to pass specific legislation permitting termination for off-site crimes, one might conclude that trying to do so without such legislation might be legally risky.
Before deciding to terminate your tenant’s lease, you’d be well advised to read your state’s statute on terminations for illegal acts. Chances are, you won’t find the clear guidance you’d like.
If your tenant challenges the basis for your termination in court, you’ll need to be prepared to prove that the property was involved, if only marginally, in the tenant’s acts. Even if it wasn’t, you have the leeway to terminate anyway. It could be an uphill fight.
It would be a mistake to leave this question without addressing one collateral issue: Does your tenant have a family? Consider the impact of termination on the tenant, especially if the tenant has children. While the tenant is incarcerated, the presence of his family will probably not pose a danger to you or other tenants.
Booting them now may start a downward spiral toward homelessness that they, especially the children, do not deserve.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@sandbox.inman.com.
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