What to do if your tenant dies or is incapacitated

I received a telephone call this week from the sister of one of our tenants. Her brother was dying and was currently in palliative care in the hospital. She asked for our help in arranging for the contents of her brother’s suite to be cleaned out and advised us that they were terminating the tenancy agreement at the end of the month.

This presents an interesting dilemma for a landlord for several reasons.

Firstly – Landlords and their property managers will usually want to help out in particularly difficult circumstances and this is one of them.

But before a landlord can help out, he must ensure that the tenant’s rights are not violated and he should also ensure that he is protecting himself as well.

So what should a landlord do:

• If the tenant in palliative care is lucid – the landlord should request a letter from the tenant directly giving notice to terminate the tenancy and also giving permission to the landlord to clear out the unit and dispose of the contents.
• If the tenant is not lucid then the landlord cannot comply with the sister’s request unless she has Power of Attorney. As long as the tenant is incapacitated, the landlord must take reasonable steps to protect the possessions of the tenant and cannot take direction from anyone – including relatives – unless they have the Power of Attorney. Doing so violates the tenant’s rights and also compromises the landlord’s position.
• If the tenant dies while he is in Palliative Care – the landlord still cannot give access to the suite to anyone unless they are the Executor of the Estate.
• If the tenant dies and there is no will or Executor, the Landlord must then call the public trustee who will then deal with the estate of the tenant.

As a landlord or Property Manager – you must be vigilante not to overstep your bounds in this regard. Sometimes next of kin will think you are harsh or unreasonable and will get angry with you but it is your responsibility to protect your tenant’s interests.