NO MORE NOTICE AFTER NOTICE OF NONRENEWAL
Once the manager has sent the resident a Notice of Non-Renewal, that resident’s file should be tagged for special identification The manager will want to avoid taking any action which would jeopardize his right to retake possession of the rental unit or to double rent in the case of a hold-over resident.
The following discussion has to be placed in the context of modern communications: distribution list emails, mass mailings, computer-generated statements. A manager is often sending documents without verifying the specific recipients.
The Superseding Agreement:
If the resident is unwilling or unable to move, he will be looking for any opportunity to extend his tenancy. Many residents will use an inappropriately sent letter or notice as evidence to bolster their position that there was an oral agreement. This correspondence superseded the Non-Renewal Notice and permitted him to renew his lease or to remain month-to-month. Even a complete fabrication can be convincing to a judge if there are documents of the manager that seem to support the fabrication. In fairness to the residents who operate in good faith, inconsistent documents of the manager can create enough confusion that the resident assumes he can stay.
Renewal Notice Sent in Error:
If the manager has sent the resident emails, letters or notices implying, suggesting or offering renewal, then the manager must immediately notify the resident of the error. I do mean “immediately”. I suggest that an email (with a delivery and read receipt if available in the email system) be sent to the resident. A follow-up letter or even the printed email should be immediately posted on the resident’s door and mailed to the resident via certified mail. The renewal information was sent in error and is withdrawn. The manager wants to notify the resident before the resident can seize the information as a renewal offer and accept it.
The focus is not the legal arguments with regard to contract formation. The important point is to avoid providing the resident with an opportunity to make these arguments in court.
After the manager has served the Non-Renewal Notice, the manager gives the resident additional non-renewal reminders or warnings at the manager’s own risk. While these reminders are sent under the pretext of helping the resident, they are usually sent for the benefit of the manager. Any contradictions or deviations from the original Non-Renewal Notice can result in voiding the original Non-Renewal Notice. The most common mistake is a contradictory vacating date or an incorrect calculation of the time remaining until the vacating date.
Seven Day Notices After the Non-renewal Notice:
Our firm generally advises against serving Seven Day Cure and Seven Day Termination Notices after a Non-Renewal Notice.
While the manager may still serve a Seven Day Notice of Noncompliance with Opportunity to Cure (a Seven Day Cure Notice), one has to question both the effectiveness of the notice and the wisdom of antagonizing a resident that has been non-renewed. Additionally, serving such a notice, when there are less than seven days until the vacating date, creates the confusion that we are trying to avoid. (Similarly, serving a Three Day notice that expires outside the vacating date is a bad idea). Serving a Seven Day Notice of Noncompliance Without Opportunity to Cure (a Seven Day Termination Notice) actually can worsen the manager’s ability to remove the resident. What would have been a straightforward holdover eviction becomes a complicated Seven Day termination eviction with all the attendant burden of proof problems that the manager must bear.
That being said, there are times when the health and safety of the staff or other residents requires a Seven Day Cure or Seven Day Termination Notice. This is a matter for the manager to discuss with his attorney.
Notices After the Vacate Date:
Serving a Three Day Notice, a Seven Day Cure Notice or a Seven Day Termination Notice to a holdover resident after the vacating date may be fatal to the non-renewal. A manager would only have the right to serve these notices if the tenancy was continuing. This means that the manager waived the non-renewal demand. Sending the resident a billing statement or account balance notice charging rent beyond the vacating date or other monthly services (pest control, valet waste) gives rise to the same argument that the tenancy is continuing. Accounting notices may be more easily explained and excused than the statutory notices. A court can easily reason that a manager should be more careful about the statutory notices.
Consult the Attorney:
As a final thought, it is always advisable for the manager to consult his attorney as soon as he discovers that he has mistakenly sent a notice, letter, or other communication to the resident that may jeopardize his Non-Renewal Notice.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW