Suppose you are a landlord and lease space, commercial or residential, to an individual tenant. Tenant timely pays rent for a while but, suddenly, rent payments stop. Upon investigating, you learn that the tenant has died. Does the death terminate the lease? Is a nonpayment proceeding available to obtain possession of the premises?
While not a common occurrence, this simple fact pattern raises several issues regarding when, and against whom, a nonpayment proceeding may be brought.
Initially, while perhaps not well known, but certainly well settled, the death of a tenant does not terminate an unexpired lease or the tenant’s leasehold estate. In such situations, generally, the executor, administrator or legal representative is permitted to remain in possession of the demised premises until the expiration of the lease.
Under our facts, how can the landlord obtain possession of the premises? The answer lies buried in RPAPL §711(2). The last sentence of RPAPL §711(2) provides: “Where a tenant dies during the term of the lease and rent due has not been paid and no representative or person has taken possession of the premises and no administrator or executor has been appointed, the proceeding may be commenced after three months from the date of death of the tenant by joining the surviving spouse or if there is none, then one of the surviving issue or if there is none, then any one of the distributes.”
In Poulakas v. Ortiz a nonpayment proceeding was commenced against respondent, the son of the deceased rent-stabilized tenant. In this case, it was not disputed that there was no administrator, executor appointed or surviving spouse of the tenant; that 3 months had elapsed from the date of death of the tenant before commencement of the nonpayment proceeding; and, the lease had not yet expired. In moving to dismiss, among other things, the respondent argued that he occupied the premises and therefore the statute was inapplicable causing the Court to examine the portion of the statute that provides “and no representative or person has taken possession of the premises . . .”
In denying the motion, the Court held that this phrase “should be construed as meaning that there is no person either in possession of the premises on behalf of the estate of legally authorized to act on behalf of the estate.” The Court specifically found that “the legislature did not intend that the ‘deceased tenant’ section of §711(2) be applied only in situations where the premises are vacant, as this would limit the remedial nature of the statute.”
Thus, when a tenant dies, a little investigation by the landlord is necessary to determine the date of death and whether an administrator or legal representative of an estate of the deceased tenant has been appointed and, if not, to identify the “issue” or distributes. Once this investigation is completed, a landlord is able to commence a nonpayment proceeding to obtain possession of leased premises. The Court’s analysis of the issues in Poulakas is must reading.
1 Dolan, Rasch’s New York Landlord and Tenant including Summary Proceedings, �32:12 (4th ed); Marine Terrace Associates v. Kesoglides, 24 Misc.3d 35 (App. Term 2d, 11th and 13th Judicial Districts, 2009)
2 25 Misc.3d 717 (NYC Civ. Ct., Kings Co. 2009)