Termination Notices for Landlords and Tenants
Termination Notices
Terminating a tenancy due to a tenant’s material breach of his lease agreement begins by providing the proper notice according to the statutes of the state where the rental property is located. The type of termination notice and the notice period depends upon the circumstances of the breach as well as state laws. Termination due to breach can usually be done with a shorter notice period than the termination of a month-to-month tenancy or waiting for the contracted expiration date of a fixed-term lease agreement.
All states have addressed the termination notice issue by statute and while terminology and notice periods may differ among the states, the substance of the notices will be similar. A termination notice properly prepared and served must be done before an unlawful detainer lawsuit can be filed. Without proper termination of the tenancy an unlawful detainer judgment cannot be issued. The court ordered judgment is required to “evict” the tenant.
A brief discussion of termination notices follows.
Notice to Pay Rent or Quit
A Notice to Pay Rent or Quit demands that the tenant pay rent within a specified number of days and, if not paid, to move out (Quit), ending his occupancy. Since failure to pay rent is the most common reason to commence eviction actions, the Notice to Pay Rent or Quit is the notice most often used.
If delinquency exists in the payment of any portion of rent due, a Notice to Pay Rent or Quit may be served on the delinquent tenant, in most states, as early as the day following the rent due date. Therefore, if rent is due on the first, a notice may legally be served on the next day absent a grace period being specified in the lease.
A few states will not allow service of a termination notice (either a Pay Rent or Quit Notice or an Unconditional Quit Notice) until the rent is a certain number of days late. In these states, tenants enjoy a statutory “grace period” plus the time specified in the Pay Rent or Quit Notice in which to come up with the rent. Of course, any longer grace period in the lease agreement also must be honored
Statutes generally require the landlord to provide the Notice a minimum number of days before the lease can be terminated and a lawsuit for possession filed with the Court. The Notice gives the tenant a few days (3 to 10 in most states, but 30 in a couple) to pay all rent owed or to move out. Some state statutes may require that the Notice be in both English and Spanish.
Notice to Cure or Quit
A Notice to Cure or Quit demands that the tenant comply with one or more terms of the lease agreement (Cure) and, if the tenant does not comply, to end his occupancy (Quit). Notices to Cure or Quit are typically given after a violation of a term or condition of the lease agreement, such as nuisance, waste or illegal use. Usually, the tenant has a set amount of time in which to cure the violation.
Lease agreements often require notice of a breach and specify the form, timing, and manner of service, as well as the tenant’s right to cure the breach. If the landlord complies with the state statute, but doesn’t comply with the lease agreement, the landlord probably won’t be able to get an eviction.
Unconditional Notice to Quit
An Unconditional Quit Notice orders the tenant to vacate the rental premises and does not allow the tenant to cure any violation of the lease agreement. These notices are the strongest of all termination notices and mean exactly what they say. The tenant leaves without an opportunity to pay back rent, correct the lease violation, or otherwise change his behavior. In most states, Unconditional Quit Notices are used when the tenant has:
- Been late with the rent on more than one occasion,
- Repeatedly committed a material lease agreement violation,
- Committed serious waste or damage to the premises, or
- Engaged in illegal activity, such as prostitution or drug dealing on the premises.
Many states have provisions for all three types of termination notices and specify which notice should be used for a particular situation. Some states may give the landlord a choice of which notice to use, for example, a Pay or Quit or the Unconditional Quit Notice for unpaid rent. The tenant does not have the option to choose a type of notice that would provide him more relief.
In a few states, the Unconditional Quit Notice is the only notice statute for any type of violation including late rent or breach of the lease agreement. A landlord is not required by law to allow a tenant a second chance in curing any breach of the lease agreement, but he can extend that option if he desires.
Many states extend special protections to victims of domestic violence or stalking. A landlord should consult with local law enforcement agencies or the local agencies that provide shelter and support for victims before taking action to terminate a victim’s lease.
In general, the person who signs any of these Notices must appear in court. This person may be one of the owners of the property, one of the partners in an ordinary partnership or one of the general partners in a limited partnership. If the landlord is a corporation, some states require that he must be represented by an attorney in court and it is best if all the papers are executed (signed) by the attorney. Remember too, that the attorney cannot appear in court alone. He must usually be accompanied by a witness having personal knowledge of the facts.
While the above notices are standard and relatively simple forms and are available from a number of sources, it is recommended that, whenever possible, a form provided by the local Court for eviction lawsuits be used. Some states have very specific requirements for notices regarding the language and type and size of the font. The landlord should not try to create his own form or improve upon the court form. In particular, the landlord should not add any language or graphics that threaten unlawful actions or imply an association with any regulatory or law enforcement agency. Such tactics are a violation of the federal Fair Debt Collection Practices Act and other applicable state statutes.
Service of Notices
To be legally effective, the landlord’s notices to the tenant to pay, cure, or quit must be properly served. State statutes are specific about how and when notices must be served. The procedures set out by statute to serve the notices are designed to provide the greatest likelihood that the person so named in the notice actually receives the notice.
The landlord, the landlord’s agent, or any person over the age of 18 can serve notice on the tenant. There are three methods of service generally used in the majority of states. They are:
- Personal Service
- Substituted Service
- Posting and Mailing
Personal service of a notice, handing the notice directly to the named tenant or leaving the notice with him if he refuses to take it, is often the choice preferred by the courts and provides the best method to prove delivery to the tenant. However, the landlord or his server should not force the notice on the tenant’s person.
Although a notice can legally be personally served on the tenant by the landlord, it may not be the best idea for the landlord to do it himself. The landlord’s personal service can lead to a confrontation with the tenant at a time when the problem is best handled by the law and could lead to unpleasantness, even physical violence.
Keeping some distance between himself and the tenant diffuses some of the emotion of the moment and helps to enforce the business relationship. It is of benefit to the landlord to engage the services of another party to serve the notice. Furthermore, if the tenant later claims not to have received the notice, the testimony of an independent party would prove valuable in the landlord’s defense.
It is recommended that each adult occupant of the premises be served with a notice. If the lease agreement was signed by co-tenants, service on only one of the tenants would be sufficient but serving all tenants is the better policy. A co-tenant, if not served, may try to use a defense later on that he had no knowledge of the situation since he was not served.
In many states “substituted” service may be used on another person if attempts to personally serve the tenant at the rental premises or at his place of employment have failed. The person performing the service may leave the notice with a person of “suitable age and discretion” at the rental premises or the tenant’s place of employment with instructions to deliver the notice to the tenant. In addition, to complete the substituted service, a copy of the notice must also be mailed first class to the tenant at the rental address. Service is not complete until both steps have been completed.
The third method of service, posting and mailing, can be used in most states if the notice cannot served personally or by substituted service. The notice is served by tacking a copy to the front door of the rental unit and by mailing another copy of the notice by First Class mail to the tenant at the rental address.
When using First Class mail, it is highly recommended that a Certificate of Mailing be utilized. The landlord or server could always choose to mail the notice by Certified Mail with return receipt requested in order to have additional documentation of service. However, if Certified Mail is used, another copy of the notice should also be mailed First Class with a Certificate of Mailing because that will often satisfy the judge when the tenant refuses to accept Certified Mail and then claims in court that he was not served.
Some states require that additional days be added to the notice period when using mailing service, typically 2 to 5 days.
Whichever method of service is used, proof of service will be required before the lawsuit can proceed.