“I see dead people.” Readers may recall the 1999 film, The Sixth Sense, because of its shocking conclusion that Bruce Willis’s character was in fact one of the dead people that Haley Joel Osment’s character could see. (Sorry if that is a spoiler, but in my defense, you have had 27 years to watch it.) It took some mental gymnastics to work out how I had missed all the clues. When judicial officials have questions about summary ejectment or expedited removal of unauthorized persons when one of the parties is deceased, it can be difficult to work out how to proceed, so I asked resident decedents’ estates expert, Catherine Wilson, to be the Bruce Willis to my Haley Joel Osment. This blog post will explore some scenarios that have come up involving deceased parties and summary ejectment.
Understanding the Language of Decedents’ Estates
Who is a devisee?
A devisee is any person who is entitled to take possession of real or personal property under the provisions of a valid, probated will. G.S. 28A-1-1(1a).
Who is an heir?
When a person dies intestate (without having made a valid will), that person’s heir is any person entitled to take possession of the deceased person’s real or personal property. G.S. 28A-1-1(3). How the property of the deceased person, or decedent, is distributed to the heirs is set out by the statutes that govern intestacy, also known as North Carolina’s Intestate Succession Act. See G.S. Ch. 29.
What does personal representative mean?
A personal representative, or PR, is a fiduciary who is in charge of administering a decedent’s estate. It is a generic term that includes both an executor (the person who administers the estate when there is a will) and an administrator (the person who administers the estate when the decedent does not have a will). G.S. 28A-1-1(5).
What is a collector?
A collector is a fiduciary appointed under G.S. 28A, Article 11, when a delay is encountered in appointing a personal representative or when the clerk of superior court finds that the best interest of the estate would be served by the appointment of a collector. G.S. 28A-11-1. The collector has some, but not all, of the powers of a PR; however, like a PR, the collector does have the ability to maintain and defend actions on behalf of the estate. G.S. 28A-11-3.
How does ownership of real property transfer when someone dies?
Ownership of real property can pass in a variety of ways at death. Property can automatically pass by operation of law, as in the case of real property owned by spouses as tenants by the entirety or real property owned as joint tenants with right of survivorship. For real property that does not pass automatically by operation of law to another person at the decedent’s death, G.S. 28A-15-2(b) provides the answer. It specifies that the title to real property of a decedent vests in the decedent's heirs as of the time of the decedent's death—unless the decedent had a valid, probated will that devised the real property. In that case, title to the real property vests in the devisees of the will and their ownership relates back to the date of the decedent's death.
Wait—doesn’t the PR automatically own real property when a decedent dies?
No, and this is a common misconception. A PR would only own title to real property if the decedent (i) died leaving a valid, probated will and (ii) the will devised the real property to the PR. G.S. 28A-15-2(b). Without this, the real property would vest in the decedent’s heirs or devisees (depending on whether there was a valid, probated will), and there is no way for the PR to own title to the real property unless the PR brings a proceeding before the clerk to obtain possession, custody, and control of the real property, often for the purpose of selling the real property to pay the decedent’s debts. See 28A-13-3(c).
Regaining Possession After the Death of a Sole Tenant
If the tenant is the sole occupant of residential rental property at the time of his death, how can the landlord recover possession of the property and dispose of the tenant’s personal property?
In 2012, the legislature established a procedure before the clerk which allows a landlord to remove a deceased tenant’s personal property from a residential property when the tenant was the sole occupant of the property. S.L. 2012-17, later codified at G.S. 28A-25-7, is an alternative to an estate administration. The process begins when the landlord files an affidavit with the clerk of court in the county where the residential property is located. The landlord mails a copy of the affidavit to the person listed as the tenant’s emergency contact, or if no such person is identified, the landlord must post notice of the filing of the affidavit on the landlord’s rental office or place of business and at the courthouse in the county where the dwelling is located.
If the affidavit complies with the requirements set out in G.S. 28A-25-7(b), the filing is sufficient to transfer the property remaining in the deceased tenant’s residence to the landlord. The landlord may comply with the affidavit requirements by filing AOC-E-450, Affidavit for Removal of Personal Property of Deceased Residential Tenant. The landlord then has an obligation to store the property for at least 90 days after filing the affidavit to see if a personal representative, collector, receiver, or collector by affidavit is appointed to handle the deceased tenant’s estate. If no one shows up on behalf of the deceased tenant to claim the property, the landlord then has the option to sell the property or donate it to a nonprofit organization that provides clothing and household furnishings to people in need at no or low cost.
Does the value of the tenant’s personal property matter?
Yes. As part of the affidavit, the landlord is required to provide a good faith estimate of the value of the tangible personal property remaining in the dwelling and an inventory. G.S. 28A-25-7(b)(6). If the value of the personal property exceeds $500.00, the landlord must follow this procedure before the clerk or file an action in summary ejectment before the magistrate (more on that below). G.S. 28A-25-7(h) sets out the procedure the landlord may follow for donating the deceased tenant’s personal property if the value of the property is $500.00 or less.
Can the landlord choose to file an action in summary ejectment against the deceased tenant instead of filing the affidavit with the clerk?
G.S. 28A-25-7(j) and G.S. 42-36.3 both include language indicating that the filing of the affidavit can be done as an alternative to commencing a summary ejectment action. Presumably, the landlord would be able to file an action for summary ejectment on the grounds that rent was not paid either in violation of the parties’ lease agreement or G.S. 42-3.
Who would be the defendant in a summary ejectment action if the landlord chose that path?
G.S. 28A-18-1 provides that “[u]pon the death of any person, all demands whatsoever, and rights to prosecute or defend any action or special proceeding, existing in favor of or against such person…shall survive to and against the personal representative or collector of the person’s estate.” Thus, the personal representative or collector of the decedent’s estate would be the real party in interest.
What if the tenant died after the summary ejectment action had been filed?
If the summary ejectment action was pending at the time of the tenant’s death, then under NC Rule of Civil Procedure 25(a), the landlord could move to substitute the deceased tenant’s PR or collector as the defendant. However, it is important to keep in mind that in order to substitute a new defendant for the tenant, there must be a PR or collector appointed for the decedent’s estate. Without this, substitution under Rule 25(a) is not possible.
Can a landlord file a summary ejectment against a deceased tenant when no PR or collector has been appointed?
No. If the landlord files the action against the tenant after his or her death, substitution would not be an option, and the deceased tenant is not a proper defendant. The judicial official presiding over a summary ejectment action filed against a deceased tenant for whom a personal representative or collector has not been appointed may choose to dismiss the case without prejudice to allow the landlord to refile against the decedent’s PR or collector once one had been appointed. If no PR or collector has been appointed for the tenant’s estate, the landlord could apply to the clerk to have a PR or collector appointed to act on behalf of the estate.
Is there a form for the landlord to apply to the clerk to have someone appointed to act on behalf of the estate?
Yes, but the landlord should seek legal advice before proceeding. The forms to appoint a PR (AOC-E-201 for decedents who die with a will, AOC-E-202 for decedents who die without a will) anticipate that the person signing the form is the same person who is applying to become the PR of a decedent’s estate. If a landlord wants to pursue appointment of a PR or collector for the deceased tenant, the landlord should seek the advice of an attorney. It’s important to reiterate that the landlord cannot sue a deceased tenant where no PR or collector has been appointed, because there is no party who is empowered to appear in the lawsuit on behalf of the deceased tenant’s estate.
Regaining Possession When the Deceased Tenant is Not the Sole Occupant
How does the landlord regain possession of residential property when the tenant is not the sole tenant?
If the surviving occupant is a co-tenant and is also on the lease agreement, then the landlord-tenant relationship continues. The landlord can file an action for summary ejectment against the surviving tenant based on the usual grounds for summary ejectment—holding over after the expiration of the lease term, violation of a condition of the lease for which the right of the landlord to re-enter is specified, failure to pay rent pursuant to G.S. 42-3, or criminal activity. For example, if the surviving tenant fails to pay rent the month following the co-tenant’s death, the landlord can commence an action in summary ejectment. Once the landlord is put back in possession of the property, G.S. 42-25.9 governs the disposal of any personal property belonging to the tenants that remains in the property.
What if the occupant is a guest or authorized resident but is not a tenant?
If the surviving occupant is not a tenant of the landlord, then there is likely no landlord-tenant relationship which is a necessary element of an action for summary ejectment. In some limited circumstances beyond the scope of this post, the deceased tenant’s heirs may take over the lease for the remainder of the term if the lease allows it, and if they fail to perform the obligations under the lease, they may be evicted. For our purposes, let’s consider occupants who would have no rights under the deceased tenant’s lease agreement.
As we discussed above, the landlord could file a summary ejectment action against the estate of the deceased tenant. If the landlord is successful, then the magistrate’s judgment for possession would apply to the tenant and anyone who occupied the property by virtue of the tenant’s right to occupy the property, i.e., the tenant’s guests.
After the tenant’s death, could the landlord use the procedure for the expedited removal of unauthorized persons from residential property to remove the deceased tenant’s guest?
Expedited removal is a potential option. While the tenant was alive, the tenant could give permission for the occupant to be there. Once the tenant dies, the occupant’s permission to reside in the property ends. If the landlord directs the occupant to leave the premises, and the occupant refuses to do so, he or she may be an unauthorized person pursuant to G.S. 14-159.50. The landlord will have to allege and prove the allegations required by G.S. 14-159.51. The landlord can file AOC-CVM-407, Complaint in Action for Expedited Removal of Unauthorized Persons from Residential Property, which contains all of the required allegations.
Regaining Possession When the Landlord Dies
Upon the landlord’s death, who has title to the property and is the lease still valid?
Title to the real property vests in the heirs upon the owner’s death or in the owner’s devisees under a validly probated will relating back to the date of the owner’s death. See G.S. 28A-15-2(b). The heirs or devisees (collectively referred to as the “beneficiaries”) would take the property subject to any valid leases. A lease agreement which is still in effect at the time of the property owner’s death binds the beneficiaries of the landlord. NC Rule of Civil Procedure 17 requires that every claim be brought in the name of the real party in interest—the party entitled to the relief sought. If the beneficiaries need to evict a tenant from inherited property, the beneficiaries as the new owners can bring the action against the tenant.
Is the personal representative the real party in interest in an action for summary ejectment against a tenant after the landlord dies?
It is unlikely that the personal representative (PR) of the estate will be the proper real party in interest unless the property was devised to the PR in the owner’s will (making the PR a devisee under G.S. 28A-15-2(b)) or the PR has an order from the clerk awarding possession, custody, and control of the property to the PR. See 28A-13-3(c).
Key Takeaways
If you have made it this far, you have probably figured out why I needed my colleague’s expert guidance and are wondering how many senses you will need to make sense of it all. Here are some points to remember:
- If a tenant who is the sole occupant of residential property dies, the landlord can elect to file an action in summary ejectment or can file an affidavit with the clerk to remove the tenant’s personal belongings. To successfully file an action for summary ejectment, a PR or collector would have to be appointed in the decedent’s estate, as they are the proper defendant in the summary ejectment action.
- If the tenant is not the sole occupant at the time of death, the landlord’s options depend on the status of the occupant. If the occupant is a surviving tenant, the lease continues. If the occupant is the tenant’s guest, the occupant may be an unauthorized person subject to expedited removal.
- The lease will survive the landlord’s death, and the beneficiaries of the deceased landlord’s estate step into the shoes of the landlord.
In my next post, I will dive further into the expedited removal of unauthorized persons following the property owner’s death.
