A long-standing problem for estate representatives for a deceased person who rented their home was the ongoing responsibility for the existing lease. The estate historically remained liable to pay rent for the remainder of the lease term. A new state law in New York has changed this rule allowing termination of the the lease after death. 

Over the last five years, several pro-tenant changes have been made to various provisions of New York’s real property law and other relevant statutes. Among these is the recent addition of Section 236-a of the New York Real Property Law which became effective February 15, 2024.  

The law addresses the reality that while many landlords were willing to negotiate an early termination of the lease when the tenant died, the negotiations were difficult, given the landlords had significant leverage. Section 236-a provides that an estate representative (executor, administrator or other representative) can elect to terminate a lease by providing written notice to the landlord by certified mail, return receipt requested. 

The termination is effective upon the date the notice is given and possession returned to the landlord. No advance notice is required. If there is a co-tenant or guarantor on the lease, their consent must be provided along with the notice.

The termination of the lease eliminates the estate’s liability for rent for the remaining portion of the lease. However, the estate still remains liable for certain expenses, such as any pre-termination rent or other obligations, cost of repairs for damage to the premises or costs incurred by the landlord as a result of the death (ex. damage from forced entry into the apartment).

Notably, the law applies only to residential or combination residential/commercial spaces. Purely commercial leases cannot be terminated. However, most commercial leases are in the name of an entity rather than an individual so this issue wouldn’t occur.

Landlords cannot change their lease terms to require tenants to opt out of pro-tenant provisions. The law specifically provides that this termination right cannot be waived as a matter of public policy.

Estate representatives should note that in some instances it may not be advisable to terminate a lease, such as if the rent is below market or it is a rent-stabilized or controlled apartment with succession rights. Importantly, the new statute puts that decision squarely in the hands of the estate representative, not the landlord.

If you are an estate representative or a landlord and need assistance handling a leased property, contact one of our attorneys for a consultation.