MANAGEMENT NONRENEWING THE MONTH TO MONTH TENANCY

The date the resident notifies you he is vacating will affect what the resident owes you, if anything. While this is all nice, the fact remains that the resident often will just do what she wants, tell you she is leaving, pack up and leave. Good luck penalizing the resident or collecting the following month’s rent because the resident failed to follow the law. However, it is not worthless to require proper notice, as many residents do follow the law and live up to their obligations. Therefore, it is crucial for you to know the mechanics, so you can properly advise the good, responsible resident on how and when to give you notice. More importantly, when you are non-renewing the month to month resident, you must strictly follow the law. Unfair as this may seem, the resident can hold you to the law, and doing the notice improperly could lead to serious legal ramifications, especially if it was crucial to you or the property owner that the resident vacate according to the Notice of Non-renewal. If you fail to properly non-renew a month to month tenancy, your attempt becomes void, and basically you must start over again from scratch. The fact that you may have given short notice or even the proper number of days notice can be nullified by when or even how you gave notice to the resident. You might think that if you shorted the notice or gave it on the wrong date, you simply need to wait until the end of the next month or until the time on your notice elapses, but unfortunately, time will not cure a defective notice. Just like giving a Three Day Notice that expires a day early, your waiting a couple more days does not “cure” the defective notice. You have to start all over again.

The Dangers of Doing It Wrong

Usually there is a definite reason you or the owner want to non-renew a month to month resident. It may be that the owner wants to move back into the unit, the resident is chronically late, the owner wants to sell or rehab the property, the property has been sold or is under contract, the residents are causing problems: the list goes on and on. If you non-renew the month to month resident incorrectly and must start all over again, serious time can be wasted. In other words, a simple error in non-renewing a month to month resident could result in killing an important real estate transaction, in which huge amounts of money are at stake, or resulting in you losing good residents who may living in surrounding units if you can’t get the problem resident out and become delayed.

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

15 days of course, right? Hold on there.  While the resident only must give at least 15 days’ notice prior to the end of the monthly rental period, the manager is actually held to a different standard. If the lease is silent on notice, the manager has to give at least 15 days’ notice prior to the end of the monthly rental period just like the resident, 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. We recommend that the manager give at least the same amount of notice to terminate the month to month tenancy as the manager has required of the resident. The number of days notice and the timing of the notice are the two main factors that can get the manager or 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 15 or 30 days’ notice any time they wish, and that the resident must vacate at the end of that 15 or 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; the important thing is that you can prove the resident got the notice. Again, 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 15 or 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 is now fine. Your notice was defective the minute you failed to mail it at least 5 business days before 15 or 30 days prior to the end of the monthly rental period. Time does not cure the defective notice, 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 resident 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 resident may deny getting the notice. 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 resident is not home or refuses to answer the door, may seem excessive, but just wait for the day when the resident 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.

Concrete Examples of Non-Renewing the Month to Month Tenancy

The below examples assume that the monthly rental payment period begins on the first day of the month. If the lease requires the rent to be paid on a day other than the first day of the month, we recommend that you call your attorney for advice on when to give the Notice of Non-renewal, as things can get tricky and confusing, another reason to always have rent due on the first day of the month.

Example Set #1- Lease is silent on how many days’ notice for terminating the month to month tenancy, or lease states 15 days

1. Manager gives resident Notice of Non-renewal on 5th of September, stating the resident must vacate by 30th of September.

Result: This is perfectly proper notice, and if the resident fails to vacate, eviction can begin.

2. Manager gives residents notice on the 4th of September, stating they must vacate on the 28th of September.

Result: This is not proper notice, and the residents do not have to vacate, and the manager will have to start over again. The notice should have ended on September 30th.

3. Manager mails resident notice on 15th of September, stating he must vacate by the 30th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again. The notice is short.

4. Manager gives resident notice on 1st of September, stating she must vacate by the 16th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again. The notice should have stated that the resident was required to vacate by September 30th.

5. Manager gives residents notice on the 17th of September, stating they must vacate by the 5th of October.

Result: This is not proper notice, and the residents do not have to vacate, and the manager will have to start over again.

Example Set #2- Lease states 30 days’ notice must be given to terminate a month to month tenancy

1. Manager gives resident notice on 31st of August stating he must vacate by the 30th of September.

Result: This is proper notice, and if the resident fails to vacate, eviction can begin.

2. Manager gives resident Notice of Non-renewal on 5th of September, stating the resident must vacate by the 6thth of October.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again.

3. Manager gives resident notice on 5th of September, stating she must vacate on the 30th of September.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again.

4. Manager gives residents notice on 1st of September, stating they must vacate on the 30th of September.

Result: This is arguably not proper notice, and the residents do not have to vacate, and the manager will have to start over again. Arguably, it is short by one day.

5. Manager gives resident notice on 20th of September, stating he must vacate by the 20th of October.

Result: This is not proper notice, and the resident does not have to vacate, and the manager will have to start over again.

The Extension Request

Inevitably you will be put in a situation when the resident 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 resident for an extension of time, if you feel it is warranted, or you feel the property owner may agree, clearly tell the resident 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 resident immediately with the resident signing an “Agreement to Vacate” form. If there are multiple residents, all residents must sign this form. If only one resident is available, give the resident a deadline to have all residents 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 resident, and document everything in writing with the resident. Any delay or failure on your part to get back to the resident with an answer will be conveniently interpreted by the resident as implicit agreement to the requested extension, while you have no agreement in writing. By telling a resident 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 resident 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 resident fails to vacate on the new agreed upon date. Never trust that residents 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.