If the tenant dies, can their partner or children stay in the flat?

Question

José Manuel Alburquerque · Accepted Answer

Yes. The tenant's place in the agreement can be taken, which is known as taking over the tenancy (“subrogarse”), by the spouse if they were living with the tenant, by the partner if they had been living together for at least two years or had children in common and by the children if they were under the tenant's parental authority or had lived with the tenant for the previous two years. The tenant's parents or grandparents, siblings and certain relatives with a disability can also do so, provided that they had lived with the tenant for the previous two years. If there are several, they decide among themselves and, if they cannot agree, that order is followed. Whoever is going to stay must notify the landlord in writing within three months of the death, enclosing the death certificate, because otherwise the tenancy comes to an end. Who can stay and in what order The spouse who was living with the tenant. The person who lived with the tenant as a partner, whatever their sexual orientation, for at least the two years before the death. If they had children in common, it is enough that they lived together. The children who were under the tenant's parental authority or guardianship or who had lived with the tenant for the previous two years. The tenant's parents or grandparents, if they had lived with the tenant for the previous two years. The tenant's siblings, in the same situation. Other close relatives with a disability of 65 % or more who had lived with the tenant for the previous two years. If there are several people with the right, they can agree among themselves on who stays. If they do not all agree, this order of priority applies, although parents over seventy take precedence over children. If nobody has the right, the tenancy comes to an end. How it is done Whoever is going to stay must send the landlord, within three months of the death, a letter with the following information: The tenant's death, with the death certificate from the “Registro Civil”, the Civil Register. Who is taking over the tenancy and how they were related to the deceased. Some proof that they meet the requirements, such as a certificate of registration on the “padrón”, the municipal population register, showing that they lived together. If the letter does not arrive within those three months, the tenancy comes to an end. In addition, the landlord can claim the rent for those three months from any of those who could have stayed, except those who waive the right in writing within the month following the death. If nobody is going to stay, it is advisable to waive the right within that month and return the keys. Worth knowing Whoever stays continues with the same agreement, the same rent and the time remaining. No new agreement begins. If the agreement was made for more than five years, or seven if the landlord is a legal entity, such as a company, it may have been agreed that nobody can take over the tenancy beyond those five or seven years. That clause is not valid if those who could stay are in a situation of particular vulnerability and are minors, people with a disability or over 65. If the landlord takes rent from someone who is not entitled to stay without making it clear to them in writing that they are not accepted as a tenant, the landlord may be deemed to have accepted them. If the agreement is an old-style protected tenancy (“renta antigua”), predating 9 May 1985, the rules are stricter.