Does a Lease Survive When the Landlord Dies?

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A landlord and a tenant enter into a leasehold, which is an estate in property. The tenant holds the present possessory interest in the property, while the landlord holds a future interest in the property. After the tenant leaves the property, the landlord takes possession of the property. A lease may survive the death of a landlord, depending on the type of leasehold to which the landlord was a party. A tenancy for years, a periodic tenancy and a tenancy at will represent the three major types of leasehold estates.

Tenancy for Years

  • A tenancy for years exists for a fixed period of time. If the tenancy for years lasts for more than one year, the lease agreement must be in writing to satisfy the statute of frauds. A common example of a tenancy for years is a tenancy that lasts for one year. A tenant signs a lease agreement for one year, and the lease agreement states the exact date that the lease ends. A tenancy for years can cease to exist when the tenant breaches the lease agreement. A tenancy for years can also cease to exist when the tenant surrenders the property to the landlord, and the landlord accepts the property. A tenancy for years survives when a landlord dies, unless the lease agreement provides otherwise.

Periodic Tenancy

  • A periodic tenancy continues from year to year, or it can also continue for periods of the year. For example, a periodic tenancy can continue from week to week or from month to month. A landlord and tenant can create a periodic tenancy expressly in the lease agreement by implication or by operation of law. For example, a tenant could have had a tenancy for years, but when his tenancy ended, he became a holdover tenant by renting the property from month to month. A tenant terminates a periodic tenancy by giving the proper notice to his landlord. For example, if the periodic tenancy is from month to month, the tenant should give one month’s notice that he plans to move out. This notice should be in writing. A periodic tenancy survives when a landlord dies, unless the lease agreement provides otherwise.

Tenancy at Will

  • A tenant or a landlord can terminate a tenancy at will at any time and for any reason. A tenancy at will arises when both the landlord and the tenant understand that either of them can terminate the tenancy at any time. Both parties must enter an express agreement to have a tenancy at will.

Termination

  • A tenancy at will terminates by operation of law when: the tenant commits waste; the tenant attempts to assign the tenancy to a third party; the landlords transfers ownership of the property to a third party; and when the landlord grants a lease for a certain term to a third party. A tenancy at will also ceases to exist by operation of law when the landlord dies.

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