Thursday, August 8, 2013

When 30 Days Is Not Thirty Days - More Landlord & Tenant

There are three types of month-to-month residential tenants. First, there is the type who understands a 30-day notice means thirty days before the beginning of the next month. Second, there is the type that thinks a 30-day notice means thirty days from the date of the notice, whenever it is given. Finally, there is the type that believes notice is for suckers and who reads stinking rental agreements anyway?

Kentucky's Uniform Residential Landlord and Tenant Act (URLTA) K.R.S. §383.695(2) - Periodic tenancy - Holdover remedies, provides:
"The landlord or the tenant may terminate a month-to-month tenancy by a written notice given to the other at least thirty (30) days before the periodic rental date specified in the notice." [Emphasis added]
I'll stick my neck out and surmise this means a month-to-month tenancy that runs from the first of each month can be terminated by written notice given thirty days or more before the beginning of the next month. So, if this is the case and notice is given, say for example, on the 7th of any month, the tenant is still contractually obligated for a full month's rent in the following month. (See note below.)

Apart for the statutory language, "(30) days before the periodic rental date," reference to a rental date, also consider  K.R.S. §383.675 - Waiver of landlord's right to terminate:
"Acceptance of rent with knowledge of a default by the tenant or acceptance of performance by him that varies from the terms of the rental agreement constitutes a waiver of the landlord's right to terminate the rental agreement for that breach, unless otherwise agreed after the breach has occurred."
Imagine the hypothetical where a landlord wishes to terminate a month-to-month rental and gives a 30-day notice on the 15th of a month. If the rental terminated 30 days after the notice, the landlord would clearly be entitled to demand and receive pro-rated rent for the two week spill-over into the following month, but accepting less than a full month's rent would work as a waiver of the termination.

The 30-day notice is not a termination of the rental agreement. The 30-day notice is a termination of a right to renew the rental agreement for another month.

You might think this is easy to understand it this way, but apparently that is not always so. I have seen rental agreement provisions like this:
" . . . . the lease will become a month-to-month lease subject to 30 day written notice by either party of non-renewal."
This says basically the same thing as §383.695(2), but it is not an improvement.

Questing for clear understandings, I tentatively propose the following rental agreement language:
"At the end of the rental period covered by this agreement, this lease will automatically renew in one month increments beginning on the ___ day of each month. Either party may stop this rental agreement from renewing automatically by giving written notice of non-renewal to the other party at least thirty (30) days before the beginning of the next rental period. If notice is not delivered to landlord a full 30 days before the beginning of the next monthly renewal date, tenant remains obligated to pay rent for the next full month."
Another variation:
This lease shall be for a term beginning ______ and ending ______, after which time this lease will become a month-to-month lease from the first day of each succeeding month, subject to written notice of non-renewal by either party. To be effective, such written notice must be delivered to the other party at least thirty (30) days in advance of the first day for any month for non-renewal. This provision may be waived by mutual agreement of the parties.
As always, there are weird permutations I have not considered. Caveat emptor.

Note: One hitch in this is the seven-twelfths of the year with 31 day months. A thirty day notice given on August 1, for example, will be effective before the beginning of September.