The death of a friend or family member is hard enough to deal with but if you’re a named executor or administrator of an estate, there’s a job to do as well as grieve. One of the most pressing issues will be any property but things can become more complex if there are tenants living in a house or flat the deceased owned.
If the person who has died was a landlord, the estate has three choices: keep the property and take over the tenancy, sell the property with tenants in situ or evict the tenants in order to sell up. This guide concerns the latter choice, when the estate needs to dispose of the asset but wants to do so with vacant possession.
Firstly, all those involved must realise the tenancy does not die with the landlord. Under the Protection from Eviction Act 1977, the tenancy must continue in line with the agreement after a landlord’s death. Details of the new landlord must be passed to the tenant within 2 months of them taking over. If this doesn’t happen, a court might adjourn proceedings.
Even during probate, executors/administrators are liable for collecting the rent, complying with lettings regulations and answering queries from the tenant. A tenant can also sue an executor/administrator if they breach the tenancy agreement.
A Section 21 or Section 8 notice can be served on tenants by those handling the estate as soon as a grant of probate (if there was a Will) or grant of letters of administration (if there was no Will) has been awarded.
There are different conditions attached to serving Section 21 and Section 8 notices, with varying notice periods. For example, less notice needs to be given if the tenant is anti-social and has rent arrears, while a well-behaved tenant who has always paid on time will need a longer notice period.
It’s worth bearing in mind tenant eviction takes time as there are backlogs in the courts. The process can on for much longer than anticipated, which should be factored into to the probate process. Also on the horizon is the ban of Section 21 evictions, which may make it harder to evict tenants during the probate process.
Most tenants will be on a fixed-term Assured Shorthold Tenancy (AST). To evict these tenants, a Section 21 notice can only be served after 4 months of the tenancy has passed and after the fixed term ends - with two months’ notice given - unless there is a break clause in the agreement. Tenants on a rolling periodic tenancy usually need two months’ notice to quit.
A tenant with an assured tenancy or a regulated tenant (also known as a secure tenant, a protected tenant or a ‘rent act’ tenant) may prove hard – or even impossible – to evict. Many will benefit from the right to live in the property until they die, while other tenants could have a ‘rights of succession’ clause in the tenancy, which allows their next of kin to take up the tenancy when they die.
It's worth establishing whether there are mandatory grounds to evict a regulated tenant. For example, a court can make a possession order if certain requirements in Ground 11 apply. These include:-
Possession may also be possible if the regulated tenant is in breach of the tenancy agreement to a degree a court rules in favour of the landlord.
Success depends on whether the deceased landlord followed lettings legislation to the letter. If the tenant did not have their deposit protected in a deposit protection scheme, did not receive the How To Rent guide, did not see the property’s EPC certificate or did not have a copy of the gas safety certificate, for gas-connected rentals, a Section 21 notice cannot be used. If the tenancy was badly managed, these elements can prove hard to substantiate by the estate.
Executors/administrators who find a tenant is still in the property even after the eviction notice has expired can apply to the court for a court order.
If the tenant had a particular fondness for the deceased landlord, is sceptical about someone new taking over or wants to use the opportunity to move on, they can also give notice to the estate - even while probate is being processed - as long as it’s in line with the tenancy agreement.
If the property was owned by joint landlords as ‘joint tenants’, the surviving owner/landlord will take over and it will be their decision whether to evict the tenants.
If the joint landlords owned the property as ‘tenants in common’, the management of the tenancy will be transferred to the person listed in the Will. If there isn’t someone singled out, the principles of distribution will apply.
If you are uncomfortable becoming a landlord or are daunted by the eviction process, there is a solution when settling an estate.
You can sell a property with tenants in place to Probate Move. We specialise in working with executors/administrators who need to sell a property quickly but don’t want the hassle of evicting tenants.
The process can start as soon as a death certificate is issued. We can provide a no-obligation valuation, discuss terms of a sale, agree an offer and even exchange contracts all while the probate process is taking place. Completion can be scheduled for immediately after ‘grant of probate’ or ‘grant of letters of administration’ is given.
Selling with tenants in place offers the estate a quick resolution and can be a vital option if there are debts to settle, if Inheritance Tax to pay or the beneficiaries need money to advance their own personal plans.
The Probate Move team would be happy to assist you with all property aspects of probate, with advice offered with discretion and sensitivity. Please get in touch.