A month-to-month tenancy renews (sometimes termed “rolls over”) every 30 days. This means that if no one says anything about leaving, you can theoretically stay forever. But if your landlord wants you out, do you get any advance warning? And what are your obligations if you decide to pack up?
It’s easy for a landlord to end a month-to-month tenancy. In most situations, your landlord need not give a reason (though acting on discriminatory or retaliatory motives is illegal). Except in New Hampshire, New Jersey, and most rent-controlled cities, where a legally recognized reason (“just cause”) is required for terminations, landlords can give you the boot just because they feel like it.
Landlords must, however, give you fair warning. Thirty days is typical, but check your state law for the specific notice requirements. Unless the rental agreement specifies otherwise, notice need not be delivered on the day rent is due. If notice is given midterm, then your tenancy will run out in the middle of the next month.
All states, and even some cities (typically those with rent control), have their own very detailed rules and procedures for how landlords must prepare and serve termination notices. For example, some states specify that the notice be printed in a certain size or style of typeface or delivered a certain way. If your landlord doesn’t follow these procedures, the notice terminating your tenancy may be invalid. But once you point out the mistake, either informally or as a legal defense to an eviction lawsuit, your landlord will probably simply correct her mistake and do it right the next time. If you want information on your state’s exact requirements for terminating a month-to-month rental agreement, consult your state landlord-tenant statutes.
If your landlord attempts to terminate your tenancy without giving proper notice, you may decide to stay, wait for the eviction lawsuit to be filed against you, and fight it with the defense that the notice was defective. If the notice is truly defective, you’ll probably survive the eviction, but the landlord will simply do it right the next time. Your gain: a few additional weeks at your old place. Your loss: time and effort spent in court, plus an eviction mark on your credit report, even though you won. You do the math.
If you need a few extra days, or even a week or two before moving, ask the landlord to extend your tenancy. In exchange, promise to go quietly at the appointed time. From the landlord’s point of view, unless you’re a troublemaker or your landlord desperately needs the unit for some other reason, it’s far more efficient to strike a deal than go through the expense and hassle of going to court. Put your offer in writing, which will assure the landlord of your good intentions—but remember, it will be devastating evidence against you in court should you renege on your promise, requiring the landlord to file an eviction to get you out.
A landlord who claims you’ve violated the rental agreement—such as by failing to pay the rent—may move quickly to terminate and evict. Notice periods for these situations are often much shorter, usually three to five days to pay up or move. Sometimes, tenants don’t have the option of paying the rent or correcting the violation—they must move or face an eviction lawsuit.
It’s equally easy for you, too, to get out of a rental agreement. Just give the required amount of notice to your landlord. If you mail the notice, be sure to take into account the amount of time your notice will spend in transit. To be safe, assume that the time begins running when the landlord receives the notice, instead of when you mailed it—the landlord may be counting from the date of mailing and may have rerented the unit as of that date. Contact the landlord and make sure you both agree as to which day will be your last (take a look at your state statutes first).
Usually you can send in your termination midterm, as can your landlord. But check your rental agreement—some landlords, anxious to avoid the hassles of being left with partial months, insist that notice be given on the day rent is due so that tenants move out at the end of a full rental period. This means that if rent is due on the first but you decide on the second that you want to move, you’ll have to wait until the start of the next month before giving notice. In other words, if your rental agreement requires you to give notice on the first day of the month, and you give notice on any other day, in the eyes if the law it hasn’t been given until the first day of the next month and won’t expire until one month after that.
Also, check to see if your rental agreement, lengthens your notice period and shortens your landlord’s. Some rental agreements establish a notice period for tenants that is longer than the one specified by state law for terminating a tenancy. Or, a landlord may attempt to shorten their own notice period. Both moves are designed to give the landlord more flexibility and you less. In some states, these agreements are valid. Check your state statute and, if the issue isn’t addressed there, contact your state’s consumer protection agency. Valid or not, be advised that a landlord who expects tenants to be bound by his last-minute decisions and short notice periods is probably one to avoid.
What happens if you give less than the required amount of notice? It’s simple: You can leave, but you pay rent for that period, anyway. For example, if you suddenly move out of a month-to-month unit where 30 days’ notice is required, the landlord will probably simply deduct from your security deposit the amount of rent you would have paid if you had delivered the required notice.
Notice is notice—there’s no retraction period. Once you have delivered your termination notice, that’s it. Your landlord is entitled to hold you to it and need not even listen to you as you attempt to explain why circumstances now make it impossible or unwise for you to move.
If you decide to stay put and hope that this business of moving will just blow over, think carefully. If your landlord has rented your place to someone else after you’ve given notice, but then you decide to stay on (“hold over”), there’s the problem of the tenant who expected to take your place. You can be liable to this tenant for their temporary housing costs incurred while the landlord evicts you or while the disappointed tenant resumes their own housing search.
There’s more. If the disappointed tenant walks away in disgust, your landlord will have a pile of rental expenses occasioned by your expected departure (advertisements, applicant screening costs, time spent showing your unit) that now appear to be a waste of her time and money. Your landlord will have an easy time deducting these expenses from your security deposit and then suing you in small claims court if you don’t replenish the deposit. In short, don’t announce that you’re leaving until you’re really sure.
If your landlord seriously violates the rental agreement or fails to fulfill their legal responsibilities—for example, by failing to correct serious health or safety problems—you may be able to move out legally without waiting for the clock to terminate your tenancy. You can leave with no written notice or by giving less notice than is otherwise required. Called a “constructive eviction,” this doctrine typically applies only when living conditions are intolerable—for example, if you’ve had no heat for an extended period in the winter.
The conditions that will justify a constructive eviction vary slightly under the laws of different states. Generally, if the landlord is on notice that a rental unit has serious habitability problems for an extended time, you’re entitled to move out on short notice or, in extreme cases, without giving notice.