Tenants have rights under the Residential Tenancies Act 2010 and Residential Tenancies Regulation 2019. This infosheet summarises the issues that may arise on the death of a tenant.
The death of a tenant does not terminate (i.e. end) the tenancy agreement. It remains in existence and shifts to the estate of the deceased.
It helps if the deceased has a Will, because it will name an executor for the estate.
The Act provides for a tenancy termination notice on the death of a sole tenant. The landlord may give a termination notice to the executor of the deceased tenant. The executor may give a termination notice to the landlord. The notice can be for immediate possession, but need not be. The termination notice may be given during a fixed term.
The rent liability of the tenant’s estate ends upon the executor giving vacant possession of the premises to the landlord.
The NSW Civil and Administrative Tribunal (NCAT) can order termination of the tenancy and possession of the premises to the landlord if vacant possession is not given according to the termination notice.
Executors or relatives of the deceased tenant are often able to negotiate the end of the tenancy without going to the Tribunal. Similarly for other occupants of the premises – negotiation with the landlord or agent can be tried. If uncertain, they should seek advice of a Tenants Advice and Advocacy Service.
Co-tenants and other occupants
For deceased co-tenants, the tenant’s executor can give notice to end the deceased’s part of the co-tenancy if it is a periodic tenancy or apply to the Tribunal for termination in the special circumstances of the case if it is a fixed-term tenancy.
Other issues that may arise
Termination of the tenancy for the death of a tenant raises all the usual termination issues:
- Rent arrears
- Water charges
- Goods left behind
- Bond and/or other compensation
- Remaining occupants
- Overpaid rent or other charges
- Utility accounts and bills
Additional issues that may arise include:
- Who is the executor of the tenant’s estate?
- Tenants who die without a Will (called ‘intestate’)
- Whether someone will apply to the Supreme Court to administer the intestacy
- Succession of tenancy by remaining occupants
Note that social housing providers have policies on succession or recognition as a tenant
- Standing for bond claims and before the Tribunal
Importantly, the relatives of a deceased tenant are not liable for debts of the tenancy. Those debts are of the deceased estate. Fortunately, the Tribunal has discretion to inform itself in any manner it thinks fit and so can be assisted by relatives or friends of the deceased in applications by the landlord where the tenant died intestate.
Friends, relatives, executors and administrators of deceased tenants can seek advice of a Community Legal Centre and/or a Tenants Advice and Advocacy Service regarding the above issues.
Infosheet updated August 2022
This infosheet is intended as a guide to the law and should not be used as a substitute for legal advice. It applies to people who live in, or are affected by, the law as it applies in NSW, Australia. © Tenants’ Union of NSW.