1.   You are NOT required by law to allow a Tenant to move back in after you make a major repair.

2.  You have no idea how long a repair will take.

3.   If your repair is for water or mold, you risk the Tenant claiming that there is still mold in the property when they return.

4.   If the Tenant has left personal property in a home during repairs, you risk the Tenant claiming loss or damage to the personal property.

5.  Nothing good comes of allowing a Tenant to temporarily vacate while major repairs are done.

6.   IF YOU TELL A TENANT THEY CAN TEMPORARILY VACATE AND MOVE BACK IN AFTER REPAIRS ARE COMPLETED, WE CANNOT ASSIST YOU AND YOU WILL NEED TO USE ANOTHER LAW FIRM. 

It is crucial that you contact our office when something serious has occurred to the home or you have a dispute with the Tenant.

If you delay too long after a problem has begun, we will be unable to assist you.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

1.   If you allow a Tenant to make repairs on a damaged property, our office will not assist you.

2.  A Tenant will expect something in return for the repairs made. 

3.   A Tenant will end up refusing to pay rent or will withhold rent.

4.   A Tenant does not know how to properly make repairs.

5.  There is great liability in allowing the Tenant to make repairs.

6.   If you allow a Tenant to make repairs OR ALLOW A TENANT TO PAY A THIRD PARTY FOR REPAIRS, your eviction can be severely jeopardized and result in protracted litigation or a counterclaim.

It is crucial that you contact our office when something serious has occurred to the home or you have a dispute with the Tenant.

If you delay too long after a problem has begun, we will be unable to assist you.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

While we have written many articles on how to non-renew a resident, there is still much confusion as to how much notice the resident must give in the event of month to month tenancy non-renewals. This article will give concrete examples of what will happen and when, depending upon the date the notice is given by the resident. Now, a weird lease provision could change everything, so this article assumes a normal lease with normal legal clauses or no clause at all. It also assumes that rent is due on the first day of the month and not on any day other than the first. If the rent is due on a day other than the first of the month, everything will change and become more complicated. This is just one of the reasons why it is good to be consistent and have the rent always due on the first day of the month.

Month to Month Tenancies

A month to month tenancy is created when the manager allows the resident to stay after the expiration of the lease agreement, or in the event that there was never even a lease in the fist place and the resident pays monthly. The resident presumably continues to pay the rent money until such time as either the manager or the resident decides to terminate the tenancy. The law clearly states that a month-to-month tenancy can be terminated by either party giving at least 30 days’ notice prior to the end of the monthly rental period.

1. Resident gives manager notice on the 1st of September saying he is leaving on the 30th of September.

Result: This is proper notice and the resident must pay the entire month’s rent for September.

2. Resident gives manager notice on 5th September saying she is leaving on the 5th of October.

Result: This is improper notice, and the resident must pay the entire month’s rent for October. No prorated rent is due back unless the manager re-rents the unit prior to October 31.

3. Resident gives manager notice on 20th of September saying she is leaving on the 30th of September.

Result: This is short notice and resident must pay or will owe the entire month’s rent for October unless the manager re-rents the unit prior to October 31.

4. Resident gives manager notice on 1st of September saying he is leaving on the 16th of September.

Result: This is  improper notice.  Resident will owe all of September rent.

The Partial Rent Acceptance Problem

As you can see from the examples above, a resident may or may not give you proper notice, and depending upon the notice, may or may not owe the next month’s rent. Here is the problem though. Often a resident will not give you proper notice OR will give you a partial rent payment covering the time period in which they will stay. If you accept that partial payment, you may be accepting the “terms” of the resident’s notice, be it proper or improper. If you take a partial rent payment when the resident has given you insufficient notice, you may not be able to charge the resident for the remaining days in the month in which he leaves, even if he has otherwise given you proper notice.  

But Wait! The Lease Requires the Resident to Give More Notice!

Many leases attempt to make the resident give you more notice than 30 days in order to terminate the month to month tenancy.  While the lease may clearly state this, and the resident by signing the lease has presumably agreed to it, the law will prevail. A month to month tenancy can be terminated by the resident giving at least 30 days’ notice prior to the end of the monthly rental period. No more can be required. If your lease has a clause requiring more notice when it comes to month to month tenancies, remember that it probably cannot be enforced, and you do not want to give your property owner the impression that just because it is in the lease, it is legal.

Looking to Avoid Misunderstandings?

One of the best ways to avoid misunderstandings is to thoroughly explain in writing to the resident how much notice has to be given, when notice must be given, and what will be owed. Before you can explain this to the resident, you must fully understand it yourself. Most residents assume that giving 30 days’ notice means just that. They give 30 days’ notice and leave, not realizing that they may owe for the rest of the the entire next month depending upon when notice is given. Many leases are unclear as to this as well, and ambiguities are construed in favor of the resident. Taking the time to create a little cheat sheet using the above information and explaining how notice must be given can go a long way in preventing misunderstandings or legal disputes.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

Many leases have a clause stating that the resident must give the manager a certain number of days’ notice in writing that they are vacating at the end of the lease. If the resident fails to give this notice and vacates, the manager tries to charge the resident a specific amount for failure to give this notice. While it is our opinion that a manager should do their best in determining whether a resident is staying or going through the use of notices to the resident which require a response by a specific time, managers still insist on charging for insufficient or nonexistent notice. Florida law now allows this, but if it is not done properly, the manager can find themselves in serious trouble, especially if they report the amount charged to a collection agency, and it winds up on a credit report.

A careful reading and understanding of the law is crucial if the manager insists on charging the resident an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the manager to give the resident notice that they will be charging the resident for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the manager to “remind” the resident that the resident must give notice so the resident is not “surprised”.

The law enacted in 2004

83.575 Termination of tenancy with specific duration.--

1. A rental agreement with a specific duration may contain a provision requiring the resident to notify the manager before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
2. A rental agreement with a specific duration may provide that if a resident fails to give the required notice before vacating the premises at the end of the rental agreement, the resident may be liable for liquidated damages as specified in the rental agreement if the manager provides written notice to the resident specifying the resident's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The manager must provide such written notice to the resident within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the resident under this subsection.

3. If the resident remains on the premises with the permission of the manager after the rental agreement has terminated and fails to give notice required under s. 83.57 the resident is liable to the manager for an additional 1 month's rent.

How it works: In order to enforce a clause in your lease that requires a resident to give you notice prior to lease end, you must do the following:

Give the resident a notice WITHIN 15 days of the beginning of the notice period you are requiring from the resident.

Example: Your lease requires 30 days notice from the resident. You must “remind” the resident of this by giving the resident notice of this sometime within days 30 and 45 prior to the lease ending.

Your Notice Must State the Following:

1. That 30 days’ written notice from the resident is required if the resident is leaving at lease end, and 2. Failure of the resident to give you notice will result in a charge of $_____________

NOTE: We recommend that the amount is no more than one month’s rent, and the lease must support this charge.

If you give the resident notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.

Common mistakes: The manager gives the resident too much notice. Many managers feel that since the lease states the notice requirement, this is enough or the manager will give the notice 60 days in advance and the lease only requires 30 days’ notice. Remember the notice to the resident must be given in a specific “window”, no more and no less.

Below is a sample notice:

SAMPLE RENEWAL OFFER WORDING

THIS SHOULD BE SENT OUT BETWEEN 1 AND 15 DAYS PRIOR TO THE BEGINNING OF THE RESIDENT’S NOTICE PERIOD AS DESIGNATED IN THE LEASE

According to your lease agreement, your lease shall expire on _________________. Management would like to give you some options.

Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.

Option 1…We will vacate the premises on the above date.

Option 2…We wish to sign a new one year lease agreement at a rental rate of $______ per month.

Please return this to Management no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Management the “failure to give notice fee” in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.

This offer by Management may be withdrawn at any time and for any reason by Management prior to Management and Resident(s) written acceptance of this offer by signature of Management below and Resident(s) below and Management fully executing a Lease Renewal or new lease if Resident(s) choose Option 2.”

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

Many leases have a clause stating that the Tenant must give the Landlord a certain number of days’ notice in writing that they are vacating at the end of the lease.

If the Tenant fails to give this notice and vacates, the Landlord tries to charge the Tenant a specific amount for failure to give this notice. Florida law allows this, but if it is not done properly, the Landlord can find themselves in serious trouble and NOT be able to charge the penalty.

A careful reading and understanding of the law is crucial if the Landlord insists on charging the Tenant an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the Landlord to give the Tenant notice that they will be charging the Tenant for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the Landlord to “remind” the Tenant that the Tenant must give notice so the Tenant is not “surprised”.

TO LEGALLY CHARGE THE TENANT A PENALTY, THE LAW MUST BE FOLLOWED AND THE LANDLORD MUST HAVE GIVEN THE PROPER NOTICE TO THE TENANT IN THE NOTICE “WINDOW” PERIOD

83.575 Termination of tenancy with specific duration.--

1. A rental agreement with a specific duration may contain a provision requiring the Tenant to notify the Landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
2. A rental agreement with a specific duration may provide that if a Tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the Tenant may be liable for liquidated damages as specified in the rental agreement if the Landlord provides written notice to the Tenant specifying the Tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The Landlord must provide such written notice to the Tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the Tenant under this subsection.

3. If the Tenant remains on the premises with the permission of the Landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the Tenant is liable to the Landlord for an additional 1 month's rent.

How it works: In order to enforce a clause in your lease that requires a Tenant to give you notice prior to lease end, you must do the following:

Give the Tenant a notice WITHIN 15 days of the beginning of the notice period you are requiring from the Tenant.

Example: Your lease requires 30 days notice from the Tenant. You must “remind” the Tenant of this by giving the Tenant notice of this sometime within days 30 and 45 prior to the lease ending.

Your Notice Must State the Following:

1. That 30 days’ written notice from the Tenant is required if the Tenant is leaving at lease end, and 2. Failure of the Tenant to give you notice will result in a charge of $_____________

NOTE: The amount can be no more than one month’s rent, and the lease must support this charge.

If you give the Tenant notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.

Common mistakes: The Landlord gives the Tenant too much notice. Many Landlords feel that since the lease states the notice requirement, this is enough or the Landlord will give the notice 60 days in advance and the lease only requires 30 days’ notice. Remember the notice to the Tenant must be given in a specific “window”, no more and no less.

Below is a sample notice:

SAMPLE RENEWAL OFFER WORDING

THIS SHOULD BE SENT OUT BETWEEN 1 AND 15 DAYS PRIOR TO THE BEGINNING OF THE TENANT’S NOTICE PERIOD AS DESIGNATED IN THE LEASE

According to your lease agreement, your lease shall expire on _________________. Landlord would like to give you some options.

Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.

Option 1…We will vacate the premises on the above date.

Option 2…We wish to sign a new one year lease agreement at a rental rate of $______ per month.

Please return this to Landlord no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Landlord the “failure to give notice fee” in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.

This offer by Landlord may be withdrawn at any time and for any reason by Landlord prior to Landlord and Tenant(s) written acceptance of this offer by signature of Landlord below and Tenant(s) below and Landlord fully executing a Lease Renewal or new lease if Tenant(s) choose Option 2.”

IF YOU DID NOT GIVE THE TENANT THE WRITTEN NOTICE IN THE “NOTICE WINDOW” PERIOD TELLING THE TENANT THAT THE TENANT HAD TO GIVE NOTICE AND TELLING THE TENANT THE PENALTY FOR FAILURE TO GIVE NOTICE, YOU ARE NOT ALLOWED TO CHARGE THE PENALTY.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

Many leases have a clause stating that the Tenant must give the Landlord a certain number of days’ notice in writing that they are vacating at the end of the lease.

If the Tenant fails to give this notice and vacates, the Landlord tries to charge the Tenant a specific amount for failure to give this notice. Florida law allows this, but if it is not done properly, the Landlord can find themselves in serious trouble and NOT be able to charge the penalty.

A careful reading and understanding of the law is crucial if the Landlord insists on charging the Tenant an amount for failure to give notice. Unfortunately, the law is a bit tricky, as it requires the Landlord to give the Tenant notice that they will be charging the Tenant for failure to give notice. This may seem like a tongue twister, but it simply is a requirement of the Landlord to “remind” the Tenant that the Tenant must give notice so the Tenant is not “surprised”.

TO LEGALLY CHARGE THE TENANT A PENALTY, THE LAW MUST BE FOLLOWED AND THE LANDLORD MUST HAVE GIVEN THE PROPER NOTICE TO THE TENANT IN THE NOTICE “WINDOW” PERIOD

83.575 Termination of tenancy with specific duration.--

1. A rental agreement with a specific duration may contain a provision requiring the Tenant to notify the Landlord before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
2. A rental agreement with a specific duration may provide that if a Tenant fails to give the required notice before vacating the premises at the end of the rental agreement, the Tenant may be liable for liquidated damages as specified in the rental agreement if the Landlord provides written notice to the Tenant specifying the Tenant's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The Landlord must provide such written notice to the Tenant within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the Tenant under this subsection.

3. If the Tenant remains on the premises with the permission of the Landlord after the rental agreement has terminated and fails to give notice required under s. 83.57 the Tenant is liable to the Landlord for an additional 1 month's rent.

How it works: In order to enforce a clause in your lease that requires a Tenant to give you notice prior to lease end, you must do the following:

Give the Tenant a notice WITHIN 15 days of the beginning of the notice period you are requiring from the Tenant.

Example: Your lease requires 30 days notice from the Tenant. You must “remind” the Tenant of this by giving the Tenant notice of this sometime within days 30 and 45 prior to the lease ending.

Your Notice Must State the Following:

1. That 30 days’ written notice from the Tenant is required if the Tenant is leaving at lease end, and 2. Failure of the Tenant to give you notice will result in a charge of $_____________

NOTE: The amount can be no more than one month’s rent, and the lease must support this charge.

If you give the Tenant notice too far in advance, you will not be able to enforce the notice requirement. It is a STRICT 15 DAY WINDOW.

Common mistakes: The Landlord gives the Tenant too much notice. Many Landlords feel that since the lease states the notice requirement, this is enough or the Landlord will give the notice 60 days in advance and the lease only requires 30 days’ notice. Remember the notice to the Tenant must be given in a specific “window”, no more and no less.

Below is a sample notice:

SAMPLE RENEWAL OFFER WORDING

THIS SHOULD BE SENT OUT BETWEEN 1 AND 15 DAYS PRIOR TO THE BEGINNING OF THE TENANT’S NOTICE PERIOD AS DESIGNATED IN THE LEASE

According to your lease agreement, your lease shall expire on _________________. Landlord would like to give you some options.

Please mark off the appropriate selection below or your lease shall terminate on the above date and you must vacate at that time.

Option 1…We will vacate the premises on the above date.

Option 2…We wish to sign a new one year lease agreement at a rental rate of $______ per month.

Please return this to Landlord no later than 30 days prior to your lease end or your lease shall be deemed terminated at the end of the lease agreement, and you shall owe Landlord the “failure to give notice fee” in the amount of $__________ as per your lease agreement in addition to any amount due from you at that time according to the lease and/or Florida Law.

This offer by Landlord may be withdrawn at any time and for any reason by Landlord prior to Landlord and Tenant(s) written acceptance of this offer by signature of Landlord below and Tenant(s) below and Landlord fully executing a Lease Renewal or new lease if Tenant(s) choose Option 2.”

IF YOU DID NOT GIVE THE TENANT THE WRITTEN NOTICE IN THE “NOTICE WINDOW” PERIOD TELLING THE TENANT THAT THE TENANT HAD TO GIVE NOTICE AND TELLING THE TENANT THE PENALTY FOR FAILURE TO GIVE NOTICE, YOU ARE NOT ALLOWED TO CHARGE THE PENALTY.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

Managers must now give notice to residents in a specific fashion and in a specific time frame or will not be able to enforce notice provisions in lease.

PRIOR LAW: Prior to July 1, 2004, a manager could require the resident to give a specific amount of notice of vacating the premises. This had to be stated in the lease and could not exceed a requirement of 60 days' notice from the resident. Most leases required a 30 day notice from the resident, and failure to give such notice resulted in the resident forfeiting their security deposit or having to pay an additional month's rent. The manager was not required to notify the resident in any way other than to state the notice requirements in the lease. Failure of the resident to give notice would result in a forfeiture of money up to the amount of rent that the notice period required and/or the security deposit.

CURRENT LAW: Manager can still require notice from the resident of up to 60 days BUT MUST give resident written notice of the resident's notice obligation within 15 days of the beginning of the required notice period. This NEW notice from the manager must contain information regarding the notice requirement, how the notice needs to be given, and the fees, penalties or other charges imposed upon the resident if the resident does not give the notice.

EXAMPLE: Lease requires resident to give manager 30 days' notice prior to lease end. Manager NOW must inform resident of this requirement by giving resident written notice per FS 83.575 45 to 31 days prior to the beginning of the 30 day notice period. If the manager fails to give this notice, and the resident vacates without notice at the end of the lease, the manager will not be permitted to charge resident for failure to give notice. The new law does not specify HOW this notice must be given. We recommend giving the notice according to the terms of your lease, hand delivering the notice or posting on the resident's door if your lease allows this type of delivery. If you are going to mail the notice, it is crucial that you ADD 5 BUSINESS DAYS for mailing, and avoid certified mail as often the certified mail is not picked up.

SAMPLE WORDING:

Place this in your Renewal Letter along with your other usual information.

"According to your lease, you are required to give us ______ days’ notice in writing if you are vacating the premise at the end of your lease term. Failure to give us this notice in writing will result in __________ Forfeiture of your security Deposit __________ you will owe us an additional _________ month rent."

PRACTICAL IMPLICATIONS: A property manager should always be diligent in determining whether a resident is staying or leaving at the end of the lease term. Most property managers send out their renewal letters 30 to 60 days prior to the end of the lease as a standard procedure and should continue to do so just as in the past. The only difference is that NOW, a letter needs to get to the resident within that 15 day timeframe before your required notice period. It is important to create a tickler file, mark your calendar, create a reminder on your computer, etc., to make sure that you do not miss this 15 day "window".

PLEASE DO NOT FORGET TO DO THIS!!!!

TEXT OF THE NEW NOTICE LAW

83.575 AS AMENDED Termination of tenancy with specific duration.—

1. A rental agreement with a specific duration may contain a provision requiring the resident to notify the manager before vacating the premises at the end of the rental agreement; however, a rental agreement may not require more than 60 days' notice before vacating the premises.
    
2. A rental agreement with a specific duration may provide that if a resident fails to give the required notice before vacating the premises at the end of the rental agreement, the resident may be liable for liquidated damages as specified in the rental agreement if the manager provides written notice to the resident specifying the resident's obligations under the notification provision contained in the lease and the date the rental agreement is terminated. The manager must provide such written notice to the resident within 15 days before the start of the notification period contained in the lease. The written notice shall list all fees, penalties, and other charges applicable to the resident under this subsection.
    

If the resident remains on the premises with the permission of the manager after the rental agreement has terminated and fails to give notice required under s. 83.57 the resident is liable to the manager for an additional 1 month's rent.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

How Much Notice is Needed to Non-Renew the Week to Week?

 Each party must give at least 7 days’ notice prior to the end of the weekly rental period,  BUT if there is or was a written lease and it requires MORE notice by the landlord, the manager MUST follow the lease agreement.

If a written week to week lease is expired, you may feel that since the lease agreement is expired, it has no meaning, but this is completely incorrect. You still are held to the terms of the expired lease. The first step is to examine the lease carefully if there was one.  

The number of days’ notice and the timing of the notice are the two main factors that can get the manager in huge trouble if the Notice of Non-renewal is incorrect.

Always remember that the number of days’ notice is the minimum number of days’ notice to be given PRIOR to the end of the weekly rental period. The most common mistake by managers is to think that they can give 7 days’ notice any time they wish, and that the Tenant must vacate at the end of that 7 day time period.

How Must the Notice Of Non-Renewal be Served?

Florida law does not explicitly provide how you must serve the Notice of Non-Renewal but gives the options of hand delivery, posting on the premises or mailing; the important thing is that you can prove the Tenant got the Notice of Non-Renewal.

You must go to the expired lease if there was a lease initially and carefully look to see if there are any requirements of the parties to serve notices to each other in a certain fashion.

If your expired lease requires that the notice be mailed, you MUST add 5 additional business days on the front end of the notice for mailing time. Don’t think that since you mailed it in the 7 days before the end of the weekly rental period as required by Florida law or the expired lease, you just have to wait another 5 days, and your Notice of Non-Renewal is now fine. Your Notice of Non-Renewal was defective the minute you failed to mail it at least 5 business days before 7 days prior to the end of the weekly rental period. Time does not cure the defective Notice of Non-Renewal, and again, even though a lease is expired, you still must follow what the expired lease provides.

Best Practices on Notice of Non-Renewal Serving

There will come a time when your Tenant is extremely upset that the week to week tenancy is being non-renewed, especially if the week to week tenancy has gone on for some time. The Tenant may deny getting the Notice of Non-Renewal.

Serving the Notice of Non-Renewal multiple ways is your safest bet. Serving the Notice of Non-Renewal by regular mail, certified mail, hand delivery and posting on the door of the unit if the Tenant is not home or refuses to answer the door, may seem excessive, but just wait for the day when the Tenant denies he ever got notice.

Private process servers also are available to serve notices and their word and affidavits of service are well respected by the judicial system. If you need a name of a private process server, give us a call, as we use them all over the state.

CERTIFIED MAIL – Certified mail is extremely unreliable so if you decide to use this method or are required to use this method by the expired lease, serve the Notice of Non-Renewal other ways IN ADDITION to the certified mail.

TIMING IS CRUCIAL

When counting the number of days, you do not count the day on which the Notice of Nonrenewal is delivered and it is straight days.  You do not have to exclude Saturdays, Sundays or Legal Holidays.

The Extension Request

Inevitably you will be put in a situation when the Tenant requests more time. This request and your response has to be treated with extreme care, as it can result in false expectations, misunderstandings and potentially create a situation in court where you have a “he said/she said” battle, which may or may not involve an out of state owner of the property who may or may not have to appear in court.

When asked by Tenant for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the Tenant that no extension will be granted unless the property owner agrees and everything is put into writing. If it is your own property, this is not an issue, as you can make a decision immediately, but if you are managing for another, you will need to check with the property owner, obtain clear direction from the property owner in writing (email is fine), and then relay it to the Tenant immediately with the Tenant signing an “Agreement to Vacate” form.

If there are multiple Tenants, all Tenants must sign this form. If only one Tenant is available, give the Tenant a deadline to have all Tenants available to sign the Agreement to Vacate, or indicate the Notice of Non-renewal stands. This is when everything usually falls apart. It is crucial to be definitive and firm with the Tenant, and document everything in writing with the Tenant. Any delay or failure on your part to get back to the Tenant with an answer will be conveniently interpreted by the Tenant as implicit agreement to the requested extension, while you have no agreement in writing.

By telling a Tenant that he can have an extension, you essentially have voided your Notice of Non-renewal. You can’t then fall back on the original Notice of Non-renewal. If the Tenant does not sign an Agreement to Vacate if an extension is granted, you could lose an eviction action, or have to re-do the Notice of Non-renewal, resulting in potentially damaging delays if the Tenant fails to vacate on the new agreed upon date. Never trust that Tenants will do “what they are supposed to do”. Assume the opposite, and if you are not sure how to handle an extension request, the best thing you can do is call your attorney immediately before doing anything.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

There will inevitably come a time in the landlord/tenant relationship where the manager wishes to end the tenancy at either the end of the lease term or at some later time, if the tenancy has become month-to- month. Successfully terminating the tenancy will depend upon the terms of the lease and the proper timing and service of the Notice of Non-renewal. Failure to non-renew properly can result in an unwanted extension of the tenancy. An improperly served or timed Notice of Non-renewal does not cure itself by the passage of time and thus becomes void to the resident’s favor. Just as the resident has a right to leave after the expiration of a lease, the manager also has a right to make a resident leave at the expiration of the lease. In this article, we will examine non-renewing a resident at lease end and non-renewing the month-to-month resident.

NON-RENEWING A RESIDENT AT LEASE END

DO YOU NEED A REASON TO NON-RENEW AT LEASE END? A manager can non-renew a resident for any reason or no reason at all, as long as the non-renewal is not based upon any illegal, discriminatory or retaliatory reason. A manager is not required to provide the resident with the reason for the non-renewal. It is imperative that if there is a reason for the non-renewal, that the manager has this well documented in the manager’s files. Often a resident who is non-renewed claims that the non-renewal was based upon race, handicap, familial status or almost any other reason related to their status as a protected class. In the event the resident files a discrimination lawsuit, a complaint with HUD or the local fair housing office, the manager will be required to provide proof that the non-renewal was not based upon an illegal discriminatory reason, but was rather based upon some valid business decision or due to the resident’s noncompliance with the lease or Florida law.

DO YOU NEED TO PROVIDE A RESIDENT WITH NOTICE OF NON-RENEWAL PRIOR TO LEASE END? Prior to the July 2023 law change, if the lease was silent as to any notice requirements at the end of the lease term, the lease would automatically end at the lease ending date, the manager shall have the right to immediately file an eviction action, and the resident will be considered a holdover resident, thus owing double rent for each day the resident remains on the premises. No notice at all from the manager was legally or contractually required in this instance. Although it may not be required by the lease and NOW, at least 30 days notice is REQUIRED BY LAW.

HOW MUCH NOTICE SHOULD BE GIVEN PRIOR TO LEASE END? If the lease requires notice by the manager prior to lease end, as many leases do, this must be strictly followed per the lease terms, otherwise the lease will automatically convert into a month-to-month tenancy. In some cases the lease is silent as to notice requirements by the manager but does have a notice requirement on the resident. In this case we recommend that the manager follow the same notice requirement that is imposed on the resident. If you are asking the resident to give you 30 or 60  days’ written notice prior to the lease end, you must give the resident at least 30  or 60 days’ written notice.

NON-RENEWING THE MONTH TO MONTH TENANCY

WHAT IS A MONTH-TO-MONTH TENANCY? A month-to-month tenancy occurs when a resident is residing on the premises after the lease has expired, or if there was never a lease in the first place. Since we highly recommend against a manager failing using a lease agreement of some sort, and there are sales tax ramifications of moving a resident into a property without a lease, we will deal here with cases where the lease has expired and has become a month-to-month tenancy. The lease becomes a month-to-month tenancy when the manager allows the resident to continue to reside on the premises after the lease expires, collecting the rent from the resident and basically carrying on business as usual, with the only difference being that the lease has expired. All the same terms and conditions of the lease still will apply, and it is not required that the manager charge or collect sales tax when the lease becomes month-to-month.

CAN THE MANAGER CHARGE THE RESIDENT MORE RENT WHEN THE TENANCY BECOMES MONTH-TO-MONTH?   The manager will probably be safe in giving the resident 30 days written notice that the rent will be increasing, but should make it clear that the month-to-month tenancy is terminating and the manager is offering a new month to month tenancy at a higher rent amount. Here, by the resident staying on the premises, there is an implicit agreement that rent will be at the higher amount. Many leases contain a clause which states that in the event the lease becomes a month-to-month tenancy and the resident remains on the premises with the consent of the manager, the rent will increase by a specified amount. This is highly recommended, as it will increase the rent and/or encourage the resident to sign a new lease or renew a lease with you.

DO YOU NEED A REASON TO NON-RENEW A MONTH-TO-MONTH TENANCY? A manager can non-renew a resident who is on a month-to-month tenancy for any reason or no reason at all, as long as the non-renewal is not based upon any illegal discriminatory reason. See the discussion above regarding non-renewing a resident at lease end. All the same reasons apply. THERE ARE EXCEPTIONS FOR GOVERNMENT SUBSIDIZED PROPERTIES.

HOW MUCH NOTICE NEEDS TO BE GIVEN TO NON-RENEW A MONTH-TO-MONTH TENANCY? If the resident is remaining on the premises under a month-to-month tenancy, and the lease has expired, either party may terminate the tenancy by giving the other no less than 30 days’ notice prior to the beginning of the next monthly rental period IF AND ONLY IF the expired lease agreement does not require a different LONGER notice period. This is extremely important!! The lease agreement which the resident signed and is not expired often has a clause which states that either party must give a particular number of days’ notice to terminate the tenancy after it becomes month-to-month. If this is the case, the manager will be held to the notice requirement in the lease agreement, while the resident simply needs to give no less than 30 days’ notice to the manager. Here we have an apparent conflict with the lease terms and Florida law. Why should not the resident be bound to the lease terms? This is an example where the resident has a clear right under the law to terminate their month-to-month tenancy by giving no less than the 30 days’ notice. The lease cannot take this right away from them.

WHAT DOES “AT LEAST 30 DAYS NOTICE PRIOR TO THE BEGINNING OF THE NEXT MONTHLY RENTAL PERIOD” MEAN? The manager or the resident must give the notice at least 30 days before the beginning of a monthly rental period. If the rent period begins on the first day of the month and either party gives at least 30 days’ notice on the first day of the month stating they will be out on the 31st day of the month, the notice is GOOD.   If the notice came from the manager and was not given at least 30 days prior to the beginning of the next rental period, he notice will be invalid, and the resident can remain on the premises until the manager gives proper notice. If the rental payment period begins on the first day of the month, either party must give the notice no later than 30 days prior to the end of a payment period in order for the notice to be valid, and as mentioned previously, the manager may have to give even more notice if the lease requires the manager to do so.

SUPPOSE YOU ARE HOLDING A LAST MONTH’S RENT AND DECIDE TO NON-RENEW A MONTH-TO-MONTH TENANCY? If you are holding a last month’s rent, when you serve your Notice of Non-renewal, you need to state to the resident in writing that you are applying the last month’s rent to the last month of the tenancy. For example, if you are holding a last month’s rent, you cannot accept rent from the resident in June and then serve them a Notice of Non- renewal on June 1st stating that they must vacate on June 30th. Your acceptance of June’s rent implies that they can stay until the end of June, and your holding another month’s rent implies that you are not going to make them move at the end of June!

SERVICE OF NOTICE OF NON-RENEWAL. Serving a Notice of Non-renewal incorrectly will result in a nullity of a notice, and the tenancy will continue as if no notice was given. Shorting a notice by a few days will not mean that the manager simply has to wait those few additional days and the resident will then have to vacate. The manager will be at square one. Florida law does not state how a notice must be served, so the lease must be examined. If the lease requires that the manager gives the resident 30 days’ notice prior to the end of the lease term, that notice must be actually received by the resident no less than 30 days prior to the ending date. A common mistake is for the manager to mail the notice without giving the required 5 business days for mailing, or just sending the notice by certified mail believing that this is a sure way to prove that the resident got notice, only to realize that the resident failed to pick up or refused the certified mail. We recommend that a Notice of Non-renewal be served multiple ways, including mail, only if time permits and hand- delivery or posting on the premises in the resident’s absence. First and foremost, the notice must be served in accordance with the lease. Sometimes a resident will fail to put a notice in writing, and the manager will then seek to take advantage of this and try to prove that since proper notice was not given, the resident owes an additional month’s rent. Most judges feel that if the resident can prove that they put you on notice, then the requirement of written notice is not as important. If a resident gives you verbal notice that they are leaving, follow this up with a confirmatory letter stating, “This will confirm our conversation whereby you have indicated that you are vacating the premises on (insert date). The manager should also then serve a Notice of Non-renewal to the resident just to be safe.

SUPPOSE THE RESIDENT REQUESTS MORE TIME? We see more problems develop when the manager and resident come to some sort of agreement but fail to memorialize this agreement in writing. If the resident requests more time, the manager and resident should sign a document whereby the manager agrees to the new vacating date and the resident agrees to vacate at that time. If the resident is going to be paying for this privilege, all this should be spelled out. NEVER MAKE VERBAL AGREEMENTS ON EXTENSIONS.

WHAT HAPPENS WHEN THE RESIDENT FAILS TO MOVE? Would it not be nice if people did what they said they were going to do when they said they were going to do it? If the resident fails to move at the expiration of the Notice of Non-renewal, the manager has some choices. The manager can file an eviction immediately, wait to see if the resident will move or give the resident an extension. If the resident has not vacated, the manager should immediately contact the resident to see what the resident’s intentions are. It may be the case that the resident is almost out or just needs a couple days. The manager may want to wait it out. If the resident needs an extension, we recommend that the resident sign an Agreement To Vacate. Never assume that just because the resident is supposed to be out or says he or she will be out, that the manager now has a right to take possession of the premises. The only way the manager can take possession of the premises, even after a Notice of Non-renewal has expired is by surrender, abandonment or eviction. Always call your attorney if you have any doubt whatsoever that the resident may not be completely out.

    LAW OFFICES OF HEIST, WEISSE & WOLK, PLLC

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com

How Much Notice is Needed to Non-Renew the Month to Month Tenant?

 While the Tenant only must give at least 30 days’ notice prior to the end of the monthly rental period, the manager is actually held to a different standard. If the expired lease is silent on notice, the manager has to give at least 30 days’ notice prior to the end of the monthly rental period just like the Tenant, BUT if the lease requires MORE notice, the manager MUST follow the lease agreement.

You may feel that since the lease agreement is expired, it has no meaning, but this is completely incorrect. You still are held to the terms of the expired lease. The first step is to examine the lease carefully.  

The number of days’ notice and the timing of the notice are the two main factors that can get the manager in huge trouble if the Notice of Non-renewal is incorrect.

Always remember that the number of days’ notice is the minimum number of days’ notice to be given PRIOR to the end of the monthly rental period. The most common mistake by managers is to think that they can give 30 days’ notice any time they wish, and that the Tenant must vacate at the end of that 30 day time period.

How Must the Notice Of Non-Renewal be Served?

Florida law does not explicitly provide how you must serve the Notice of Non-Renewal but gives the options of hand delivery, posting on the premises or mailing; the important thing is that you can prove the Tenant got the Notice of Non-Renewal.

You must go to the expired lease and carefully look to see if there are any requirements of the parties to serve notices to each other in a certain fashion.

If your expired lease requires that the notice be mailed, you MUST add 5 additional business days on the front end of the notice for mailing time. Don’t think that since you mailed it in the 30 days before the end of the monthly rental period as required by Florida law or the expired lease, you just have to wait another 5 days, and your Notice of Non-Renewal is now fine. Your Notice of Non-Renewal was defective the minute you failed to mail it at least 5 business days before 30 days prior to the end of the monthly rental period. Time does not cure the defective Notice of Non-Renewal, and again, even though the lease is expired, you still must follow what the expired lease provides.

Best Practices on Notice of Non-Renewal Serving

There will come a time when your Tenant is extremely upset that the month to month tenancy is being non-renewed, especially if the month to month tenancy has gone on for some time. The Tenant may deny getting the Notice of Non-Renewal.

Serving the Notice of Non-Renewal multiple ways is your safest bet. Serving the Notice of Non-Renewal by regular mail, certified mail, hand delivery and posting on the door of the unit if the Tenant is not home or refuses to answer the door, may seem excessive, but just wait for the day when the Tenant denies he ever got notice.

Private process servers also are available to serve notices and their word and affidavits of service are well respected by the judicial system. If you need a name of a private process server, give us a call, as we use them all over the state.

CERTIFIED MAIL – Certified mail is extremely unreliable so if you decide to use this method or are required to use this method by the expired lease, serve the Notice of Non-Renewal other ways IN ADDITION to the certified mail.

TIMING IS CRUCIAL

When counting the number of days, you do not count the day on which the Notice of Nonrenewal is delivered and it is straight days.  You do not have to exclude Saturdays, Sundays or Legal Holidays.

The Extension Request

Inevitably you will be put in a situation when the Tenant requests more time. This request and your response has to be treated with extreme care, as it can result in false expectations, misunderstandings and potentially create a situation in court where you have a “he said/she said” battle, which may or may not involve an out of state owner of the property who may or may not have to appear in court.

When asked by Tenant for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the Tenant that no extension will be granted unless the property owner agrees and everything is put into writing. If it is your own property, this is not an issue, as you can make a decision immediately, but if you are managing for another, you will need to check with the property owner, obtain clear direction from the property owner in writing (email is fine), and then relay it to the Tenant immediately with the Tenant signing an “Agreement to Vacate” form.

If there are multiple Tenants, all Tenants must sign this form. If only one Tenant is available, give the Tenant a deadline to have all Tenants available to sign the Agreement to Vacate, or indicate the Notice of Non-renewal stands. This is when everything usually falls apart. It is crucial to be definitive and firm with the Tenant, and document everything in writing with the Tenant. Any delay or failure on your part to get back to the Tenant with an answer will be conveniently interpreted by the Tenant as implicit agreement to the requested extension, while you have no agreement in writing.

By telling a Tenant that he can have an extension, you essentially have voided your Notice of Non-renewal. You can’t then fall back on the original Notice of Non-renewal. If the Tenant does not sign an Agreement to Vacate if an extension is granted, you could lose an eviction action, or have to re-do the Notice of Non-renewal, resulting in potentially damaging delays if the Tenant fails to vacate on the new agreed upon date. Never trust that Tenants will do “what they are supposed to do”. Assume the opposite, and if you are not sure how to handle an extension request, the best thing you can do is call your attorney immediately before doing anything.

“Serving the Property Management Professional”

www.evict.com      www.evicttv.com      www.evictforms.com      info@evict.com