Death of a Tenant
By Christopher A. LaVoy, Esq.
Tiffany & Bosco, P.C.
Recently several mini-storage operators have contacted me about what to do when a tenant dies. The question normally comes up when a relative of the deceased tenant comes forward asking for access to the unit. The operator would like to help the family, but at the same time is concerned about liability resulting from an unauthorized person taking contents from the unit. Here is my advice.
You are safe granting any person, whether a family member or not, access to the unit if the person presents you with an order from the court appointing him or her as the “personal representative” of the estate. You should insist on a certified copy of the order-- it will have a certified copy stamp on it from the Clerk of the Court. If presented with such an order, you should only allow access to the person named as the personal representative in the order, which means you should check the person’s driver’s license to confirm identify.
There is a slight qualification to the above. Sometimes the personal representative appointed by the court will reside outside of Arizona and will have someone else in Arizona assist in collecting the assets of the estate. If a person show ups claiming to be the agent of an out of state personal representative, ask for an affidavit from the personal representative stating that the person at you door has authority to act for him or her and then call the personal representative to confirm the authority. Again, make sure the person claiming to be the personal representative is the person named in the court order; perhaps have the out of state person send you a photocopy of his or her driver’s license.
There are some situations where a personal representative is not appointed to administer the estate. One is when the assets of the decedent are administered through a trust. In such case, ask for a copy of the legal document appointing the person at your door as the trustee of the trust and, again, check his or her driver’s license. If the person claims to be acting as the agent of an out of state trustee, ask for the affidavit and identification discussed above.
Another situation where there is no personal representative is when the decedent has what is called a “small estate” valued at less than $75,000. In such case, you may grant access to a person who provides you with an affidavit that complies with A.R.S. § 14-3971. Pursuant to A.R.S. § 14-3972, you have no obligation “to inquire into the truth of any statements in the affidavit” and in granting access are “discharged and released to the same extent as if [you] dealt with a personal representative of the decedent.”
My advice is that you contact your attorney if you are presented with the trust or “small estate” situation to confirm that you have authority to grant access because some legal analysis is involved.
In all of these situations you should keep copies of the documents you relied on in granting access in case a dispute develops down the road (e.g., the personal representative order, trust documents, affidavits, identification, etc.).
You may also allow access if the person who shows up has authority to access the unit under the deceased tenant’s lease, such as when the person is named as a co-tenant under the lease.
Last, if rent is no longer being paid on the unit, there is no reason you cannot exercise your lien rights just as if the tenant were alive. As a practical matter, you may wish to contact a friend or relative of the decedent before resorting to this to see if anyone wishes to bring the rent current to protect the contents in the unit. When giving notice in the lien foreclosure process, if you know that a personal representative has been appointed, you should also send the required notices to him or her.
[This article deals with a law related subject at a general level and is not intended for you to rely on. You should consult a lawyer before making a final decision in a situation involving any legal issues.]
Christopher A. LaVoy is partner in the law firm, Tiffany & Bosco, P.C., and serves as AZSA’s legal counsel. He can be reached at 602-255-6000.
Source: Behind Closed Doors, AZSA Newsletter Archives