Owners of rental property are sometimes confronted with special situations. One such situation is the death of a tenant in an existing tenancy. This often means a heavy loss for the relatives, but also often raises many unanswered questions for the landlord. What right of termination they have, whether there are any heirs or whether anyone can take over the tenancy at all. Such an incident can cause many complications, but it doesn't have to. Nevertheless, it is advisable to clarify the situation quickly, as the tenancy does not automatically end overnight when a tenant dies. Strict regulations apply in tenancy law, especially in the event of the death of a tenant. § Section 563 of the German Civil Code (BGB) regulates the right of entry in the event of the tenant's death. This serves to protect people who lived together with the deceased tenant in a household, i.e. the rented property, from being forced to move out. Section 564 BGB deals with the continuation of the tenancy with the heir as well as extraordinary termination. The German Civil Code (BGB) regulates precisely which persons are deemed to be successors in such an incident. However, this depends on the individual case and cannot be answered in general terms. Below you will find out more about the consequences of the death of a tenant under tenancy law, which can provide you with a general overview, especially as a landlord.
Tenant dies: What happens to the tenancy and who pays the rent now?
As mentioned above, the tenancy agreement does not end automatically due to the death of the tenant. Which person takes over the tenancy agreement in each individual case depends on the situation of the deceased and the tenancy. If there are other tenants registered in the tenancy agreement, the tenancy will continue with them without any major problems. However, it can also happen that the remaining tenants make use of their extraordinary right of termination with statutory notice. However, this is a different case. The remaining tenants have the right to take over the rental property under the previous conditions. However, a fixed order applies to the right of entry, which should always be adhered to:
- Spouses or life partners living in the same household
- Children of the deceased tenant who also live in the same household
- Other members of the deceased's family who also lived in the same household as the tenant.
It must be noted here that, in accordance with Section 563 (2) BGB, mere flat-sharing communities are not included in the group of persons authorised to enter.
If there is no other tenant or if they are already deceased, the heirs of the deceased and any persons registered in the tenancy on behalf of the tenant must continue to pay the rent. Landlords are entitled to demand the rent for a further three months. In addition, the heirs or beneficiaries are obliged to settle any outstanding and due rent debts or costs for clearing out the deceased's home. These are known as estate liabilities. In general, heirs should act quickly and accept the inheritance within four weeks of learning of the inheritance or, if necessary, disclaim it. After this period has expired, it is no longer possible to disclaim the inheritance. If there are no heirs, which is often the case for single people, or if they withdraw from their inheritance, the duty falls to the probate court at the request of the landlord. This then takes over the administration of the estate. The estate is administered by an appointed guardian of the estate. This person also handles the deceased's rental affairs. In such a situation, the landlords have a very good chance of having the rent debts settled. Under no circumstances may the landlord enter and empty the rented property on his own initiative, as this would be tantamount to trespassing and if heirs do turn up, they could assert claims for damages against the landlord.
What notice periods apply in the event of the tenant's death?
The heirs as well as the persons authorised to take over can declare to the landlord within one month of learning of the tenant's death that they do not wish to take over the rental property. If this period has expired, they automatically enter into the existing tenancy of the deceased. It is not necessary to amend the tenancy agreement. In such a case, both the heirs and the beneficiaries have a special right to terminate the tenancy agreement. For both of these groups, a notice period of one month applies after knowledge of the event, whereby the cancellation period is three months. The special cancellation in the event of the tenant's death must be made in writing and with reference to the special right of cancellation. Only in the case of inheritance must the letter of cancellation be signed jointly by all heirs.
If the rental property is in a popular location or region and you could achieve a much better rent, a special right of cancellation is interesting for the landlord. In such a situation, the landlord also has the option of special cancellation. However, there must be serious reasons for the landlord to assert a special right of cancellation against persons entitled to move in. Such a special right of cancellation also applies to heirs, although no special reasons are required here. The landlord can make use of this special right of cancellation within one month of becoming aware of the tenant's death. The one-month period is important here. Otherwise, after the tenant's death, the landlord has little opportunity to terminate the tenancy by means of a special right of termination. However, such difficulties can be easily avoided. As the landlord, you can stipulate in the tenancy agreement when the contract is concluded that the tenancy ends at the latest upon the death of the tenant.
Who is entitled to the rental deposit after the tenant's death?
The rental deposit of the deceased person stipulated in the tenancy agreement between the tenants is due to the heirs after the death of the deceased person, provided the tenancy agreement is not taken over by the beneficiaries or heirs. This constellation only applies if the landlord is not entitled to a share or even the entire deposit. Claims on the part of the landlord may arise, for example, due to rent arrears or unpaid utility bills. The heirs, in turn, are entitled to any credit balance from the statement of service charges. Basically, the heirs of the deceased assume the rights and obligations of the deceased.
Who is responsible for clearing the rented property after the tenant's death?
As mentioned above, the heirs are liable for all of the deceased's outstanding obligations after the tenant's death in accordance with Section 1967 BGB. In addition to rent payments, the liabilities of the estate also include the entire costs of clearing the rented property. This also includes any cosmetic repairs, which must also be carried out by the heirs. If the heirs have cancelled the rental agreement in due time, they must also vacate the rented property and hand it over to the landlord at the end of the notice period.
If no heirs can be found after the tenant's refusal because they cannot be traced or are generally unknown, the landlord has the option of enforcing his claim to the return of the rented property in court. The court will appoint a guardian of the estate, because if no heirs can be found, the estate will be inherited by the country in which the deceased tenant last resided. If the estate is over-indebted, the landlord will, in the worst-case scenario, be left with the costs of renovation and service charge bills.
Important Note: The content of this article has been prepared to the best of our knowledge and belief. However, due to the complexity and constant evolution of the subject matter, we must exclude liability and warranty. Important Notice: The content of this article has been created to the best of our knowledge and understanding. However, due to the complexity and constant changes in the subject matter, we must exclude any liability and warranty.
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Lawyers in Cologne provide advice and representation in tenancy law.