RESIDENT NONRENEWING THE MONTH TO MONTH TENANCY

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 15 days’ notice prior to the end of the monthly rental period.

1. Resident gives manager notice on 5th 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 20th of September.

Result: This is likely proper notice, but the resident must pay the entire month’s rent for September. No prorated rent is due back.

3. Resident gives manager notice on 5th of September saying he is leaving on the 10th of September.

Result: Although not 15 days’ notice, this notice will likely hold up, but the resident must pay the entire month’s rent for September. No prorated rent is due back.

4. 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.

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

Result: This is likely proper notice, but the resident must pay the entire month’s rent for September. No prorated rent is due back.

6. Resident gives manager notice on the 20th of September saying she is leaving on the 5th of October.

Result: This is short notice and resident must pay or owe the entire month of October unless the manager re-rents the unit prior to October 31. In examples 2, 3, and 5 above, the resident does not actually inform the manager that he or she will be out effective September 30. The manager’s non-renewal notice to the resident must be accurate concerning this date. It is usually a good idea to “cross-notice” the resident with your own notice of non-renewal in these situations; this will also help to clarify your position that full September rent is owed.

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. For example if the resident gives you notice on September 1st that she is leaving on September 16, and you accept the 16 days partial payment for September, you may have waived your right to the rest of September rent. Likewise, if the resident gives you short notice telling you on September 20th that they will be leaving on October 6th and you accept the 6 days of rent for October, you most likely will have waived your ability to charge or collect for the rest of October.

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

Many leases attempt to make the resident give you more notice than 15 days in order to terminate the month to month tenancy. Often we see 30 days as a typical requirement in the lease. 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 15 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, 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 15 days’ notice means just that. They give 15 days’ notice and leave, not realizing that they may owe for the rest of the month or even 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.