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Dealing with Landlords and Rental Property in a Florida Probate

December 14, 2016

40521412 - lease agreement with pen document is mockupIn Florida, if a loved one has passed away while residing in a rental property, the heirs of the estate and surviving family members may be frustrated to learn that Florida Law does not provide a mechanism for easy access to the rental unit to retrieve the deceased’s personal belongings.  Unless the person attempting to gain access to the property is listed on the lease, the landlord is prohibited by Florida law from providing access.

The Florida Landlord Tenant Act sets forth the relationship or rights between a landlord and tenant, and it contains a provision especially important for this scenario.  Florida Statute 83.59 provides:

83.59 Right of action for possession.

(1) If the rental agreement is terminated and the tenant does not vacate the premises, the landlord may recover possession of the dwelling unit as provided in this section.


 (d) When the last remaining tenant of a dwelling unit is deceased, personal property remains on the premises, rent is unpaid, at least 60 days have elapsed following the date of death, and the landlord has not been notified in writing of the existence of a probate estate or of the name and address of a personal representative. This paragraph does not apply to a dwelling unit used in connection with a federally administered or regulated housing program, including programs under s. 202, s. 221(d)(3) and (4), s. 236, or s. 8 of the National Housing Act, as amended.

This means that a landlord cannot take possession of personal property owned by the Tenant after being notified in writing of the existence of a probate estate or the name and address of a Personal Representative.  So if you are dealing with this issue, it is important to put the landlord on notice of the probate proceedings as soon as possible.  Doing so tolls the otherwise 60-day time period that the landlord has in which to take possession of the contents of the unit.  Once letters of administration are issued and a Personal Representative has been appointed, provisions can be made for obtaining the personal items, returning the unit to its pre-rental condition, and making payment for past rent.  Importantly, the lease may have provisions regarding termination of the lease applicable if the tenant passes away.  Otherwise, it is good practice to begin this process as soon as possible to prevent waste of estate assets.

If for whatever reason the landlord obtains access to the unit despite notice of the pending probate proceeding, you have a cause of action under Florida law for a violation of the prohibited practices identified again by the Florida Landlord Tenant Act.   Fla. Stat. 83.67 sets forth the prohibited practices in the Act.  A successful litigant under the statute is entitled to damages of the greater of compensator damages or three months rent along with recoverable attorneys fees and costs.   Should you find yourself dealing with a Florida Probate that involves a landlord and rental property, give us a call to learn how we can help.

Disclaimer:   The information contained in this blog/website is for informational purposes only and provides general information about the law but not specific advice.  This information should not be used as a substitute for advice from competent legal counsel as laws change and the facts in your specific case need to be analyzed.