A member recently got in touch asking for guidance on what best practice would be when ending a tenancy and taking back a property following a resident’s death. They are currently being steered by solicitors to obtain a possession order for every case, but wanted to know if other organisations do this.

Aisha Akhtar, a qualified lawyer and an HQN associate on legal aspects of housing management, replied:

“The tenancy does not end when the tenant dies. The only people who can end it are:

• An executor – the person named in the will, who will deal with the possessions of the person who has died
• An administrator – a person who has applied to the Probate Registry and obtained letters of administration (or the grant of probate). In the above situation, a shorter notice (ie, less than 28 days’ notice) may be agreed by the landlord
• The tenancy may be ended by the landlord by serving a notice to quit (NTQ). Address the written notice to: “The Personal Representative of [full name of the tenant who died] of [last known address for the tenant who died].” It must be delivered to the property and lodged with the public trustee on form NL1 before the NTQ expires.There is no need to lodge with the public trustee if there is someone acting as the personal representative named (for example, you would give them a copy of the notice in the will).

“If you had to get a possession order on every single property on death it would cost a lot of money and be time consuming and may result in arrears racking up, as well as the voids team asking how long things will take. We have so many people in need of housing.

“A next of kin, who is not the executor or administrator, cannot end the tenancy under the law.

“My best practice tip is for the landlord to serve the NTQ as above and lodge with the public trustee if needed. The tenancy will end four weeks after this is served. Rent will be charged during this time. Any charges will be made against the estate once the tenancy is ended.

“After the four weeks, the landlord should attend the property and if it appears from outside (for example, from the window) that the property is full of items and there is possibly someone else living there, please obtain a possession order as this is not ‘vacant possession’.

“If the property looks empty or there are not many items left, then you might not need a court order. You can attend and do an inventory and take photos for the file. Serve a notice under the Torts (Interference with Goods) Act 1977, giving reasonable time for the property to be cleared. If no one claims the items, then the landlord is allowed to clear the property and change the locks. You are allowed to sell any items of value if needed.

“If the executor, administrator or any other individual already has keys, you should not provide access to the property. However, if no-one has the keys, you should only give them to the executor or administrator of the will. It is always good to get a disclaimer form signed and the keys returned, then dispose of anything not required.

“The next of kin has no right to empty the property unless they are an administrator or executor. I understand why some companies allow them to clear the property, as it is quicker, but from a legal perspective, my advice is to be very careful. If the next of kin has already emptied the property as they had the keys, then that is not the landlord’s fault.

“I will end by saying: if in doubt, get a court order.”

This issue is covered in Aisha’s HQN training course ‘Tenancies: The pitfalls of ending a tenancy – common scenarios and what to do (England only)’. The next session takes place on 24 January 2025. You can book your place here.