Tenant’s death and continuation of the lease agreement
A client with the following problem came to the law firm: the client’s mother has died recently, who had a lease agreement for an apartment. The agreement was for an indefinite period of time. The client has been living with her mother and they were both registered in the apartment for permanent residence. Currently, the owner refuses to enter into the agreement with the deceased’s daughter. The owner claims that she must check out and then he will enter into a new fixed-term lease agreement with her. What is more, he claims that contracts are no longer made for an indefinite period of time. However, the client prefers to have an agreement for an indefinite period of time. In addition, she is concerned about whether the owner will actually sign an agreement with her. And as a consequence, will it not end in her total loss of the apartment.
The situation, despite the appearances and fears of the client, is quite simple.
Action for determination
The client’s situation is directly regulated by the Civil Code in art. 691. On its basis, the client has automatically become a tenant in place of her mother. Therefore, actually, she does not have to do anything with the agreement, and she certainly does not have to check out. The daughter has joined the rights and obligations of the previous tenant (her mother). Therefore, she can live in the apartment and incur the living costs. She can also require the owner to confirm the existence of the agreement in writing (e.g. in the form of an agreement annex). However, this is not needed for the continued existence of the lease agreement. However, if the daughter of the decreased needs confirmation of the rights to the premises in the form of a document, and the owner, despite the call, still refuses, it will be necessary to bring an action against him to establish the existence of the lease.
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Who is entitled to lease after the tenant’s death
Not only the tenant’s children enter into the lease agreement by law, but also:
– a spouse who is not a co-tenant of the apartment,
– children of the tenant’s spouse,
– other persons, insofar as the tenant was obliged to provide maintenance for them,
– a person who actually cohabitated together with the tenant (it is assumed that this is not only about a person in a concubinage relationship, but also, e.g., a child placed in a foster family or siblings). It should be kept in mind that in the event of a court case, we will have to prove cohabitation.
The second, equally important and necessary condition for entering into a lease agreement in place of the previous tenant, is the permanent residence of that person with the tenant of the premises until his/her death.
Legal grounds: art. 691 § 1 and 2 of the Civil Code, art. 189 of the Code of Civil Procedure
Legal status as of October 2019