When a landlord needs to end a tenancy, issuing a Notice to Quit is a standard procedure. However, for this notice to be legally binding, it must meet specific criteria. An invalid Notice to Quit can delay the eviction process and lead to legal complications.
Understanding these pitfalls can help ensure that the notice is executed correctly and is legally enforceable. Below are some of the most common reasons for having a notice rejected and your case dismissed.
Improper Format
The notice must include all details exactly as required by the state. The notice must state the precise amount of rent due, the names of all tenants who owe the rent, and the address where the rent is due. Things that can invalidate the format include:
- Overstating the rent. If the tenant owes $1500 and the notice claims they owe $1501, the notice is invalid.
- Misstating the address. If the notice says the rent is past due at “Apartment 7D” and the tenant lives at “Apartment 6D” your notice is invalid.
- Failing to identify all tenants. If the notice is addressed to “Fred Jones” but the apartment was rented to “Fred and Ethel Jones,” then you’ve forgotten to evict Ethel, and your notice is invalid.
- Failing to provide payment instructions. Even if the rent is always paid to the same place, the notice must tell the tenant where to bring the past due rent. If you forget to do so, you invalidate your notice.
Using a proper template can relieve you of many of these concerns.
Incorrect or Insufficient Notice Period
Every state has its own notice period. In most states, unpaid rent is subject to a three-day clear-or-quit notice, but in a few places, it may be as high as seven days. A few places have different rules for subsidized housing (Section 8), where tenants may have the right to a hearing before the Housing Authority before any eviction can take place.
The notice period may also differ depending on why you are evicting a tenant. Some states have one time period for unpaid rent and another for nuisance evictions. If you are simply not renewing a lease, are selling the property, or are in foreclosure, you may need to give a tenant up to 180 days’ notice.
However, the most common cause of insufficient notice defects has to do with posting. A tenant has the number of days on the notice on the day after the posting to correct the problem. Days are counted from the date of posting, not the date on the notice. In most states, “days” do not include weekends, holidays, or court closures.
For instance, if you post a 3-day notice on Monday, the tenant has Tuesday, Wednesday, and Thursday to pay the rent. The soonest you can file your eviction complaint is Friday.
If you post the 3-day notice on Wednesday, the tenant has Thursday, Friday, Saturday, Sunday, and Monday to pay. The tenant then has two extra days to pay since the soonest you can file your complaint is Tuesday.
Not all states follow this rule, so you should verify the exact method of counting with your court clerk before filing. However, many landlords invalidate their own cases by filing their eviction notices a day early. You’re better off giving your tenant an extra day to pay than filing too soon.
Incorrect Reason for Termination
Landlords can only evict tenants for legitimate reasons.
- Failure to pay rent according to the lease agreement
- Violation of lease terms
- Creating a nuisance/endangering other tenants
- Unlawful or criminal activity
Landlords can also refuse to renew a lease at the end of the lease term and may evict tenants during the lease term with proper notice if they sell the property, are in foreclosure, or if they wish to move into the property themselves.
If the notice does not state one of these reasons for eviction, it is invalid and will be dismissed.
Discriminatory Intent
All states either follow the Federal Fair Housing Act (FHA) or have their own version of the law. The Fair Housing Act prohibits landlords from discriminating in renting, including evictions, because of:
- Race
- Religion
- Gender or gender preference
- National origin
- Family status
- Disability
If your tenant believes you have discriminated against them in your eviction because of any protected status, you may find yourself in court trying to explain the reason it is not.
Discriminatory intent does not need to be overt. The tenant must only show that you treated them differently than others in similar circumstances.
Retaliation
Landlords should know that they should never evict tenants for making complaints to the zoning board, code enforcement, or the Housing Authority. Nor should you evict tenants who constantly call your maintenance staff to fix broken doors or who let their kids run around the complex.
Retaliatory eviction happens, but it should not be why you evict a tenant. Some states do not allow evictions to proceed for a statutory period after a tenant makes a complaint to a government agency.
Your safest course of action is to keep your building in good repair. If tenants violate noise restrictions, then give them a notice for that. Never evict anyone for something that could be seen as retaliatory.
Failure to Follow Proper Delivery Procedures
There are three ways to deliver a notice to a tenant.
- Hand the notice directly to the tenant. Most landlords do not use this method. Not only is it confrontational, but it can be difficult to find a tenant at home during business hours.
- Give the notice to someone else at the tenant’s residence and mail a copy to the tenant.
- Post the notice on the tenant’s door and mail a copy to the tenant. This is the most common method.
Every state has its own method. A few states may require the mailing to be certified or registered so you have a receipt of delivery. In Alabama, notice must be hand-delivered. It cannot be mailed.
If your tenant did not receive the notice or did not get it according to your state laws, then the notice is defective. In this case, depending on what the tenant did after receiving the notice, you may be able to proceed with your case.
Technical Error
When you put the amount due on the notice, you cannot include any other amount, such as late fees, damage repairs, or similar charges, unless your lease agreement specifically states you are entitled to such fees in the event of non-payment of rent.
A notice for unpaid rent can only include the unpaid rent. A notice for nuisance or damages should not contain any request but to correct the problem. If there are additional fees and costs, you can request those at the court hearing. This is a common error, but don’t make it.
Fraud or Misrepresentation
Fraud is more than any of these other issues. It is a crime to attempt to evict a tenant who has already paid or using the eviction process to raise the rent. One reason that landlord/tenant law are so onerous and require so many steps is because landlords in the past were fraudsters and used the process to cheat their tenants.
Intentionally misrepresenting the reason for the notice is a criminal offense. Do not do this.
► READ MORE: How to Identify and Deal With Tenant Fraudsters: A Landlord’s Guide
Dual Notice Requirement
Many states, such as Nevada, have a dual-notice requirement. This notice system gives the tenants fair notice of the violation and impending eviction. Not all states have this system, and it does not apply to all violations. In Nevada, it applies to property damage or nuisance violations.
In a dual-notice system, the landlord must first post a notice of the violation. The tenant has a certain time period to fix the violation. If the violation is not fixed, the landlord posts a five-day Unlawful Detainer notice. At the end of the Unlawful Detainer period, the landlord can begin the eviction process.
This process does not give the tenant additional time to correct the problem. The Unlawful Detainer process only notifies the tenant that the landlord is taking them to court and that they have the right to file an answer and where to file it. In some cases, the tenant may have a counterclaim against the landlord, so this lets them begin their own case.
Impact of Invalid Notices on the Eviction Process
If the original notice is invalid, the landlord must start the eviction process over. The tenant may stay in the residence under the current lease agreement. The court will not order the tenant to pay any past-due rent or make any other changes demanded in the notice.
If the landlord violated any rules in posting the invalid notice, the tenant may have a civil claim against the landlord. For instance, if the tenant had to take time off work to appear in court to defend against the claims, the tenant may be able to sue for lost wages.
At a minimum, if your notice is invalid, you must start the process again. If this tenant regularly causes a nuisance or is late with rent, you must wait until the next instance of a problem before you can begin the eviction process. In addition, you must proceed carefully to ensure your next effort does not appear to be “retaliatory” for losing the previous case.
How to Ensure Your Notice to Quit is Valid
The best way to have a valid notice to quit is to leave it to the professionals. Either consult with a landlord-side attorney and have them handle your evictions or download a legally reviewed template.
This way, the documents will be done by someone who knows the process and the system and understands the language and deadlines. An attorney will also have a process server on call who will post and deliver your notice and any subsequent summons, complaints, or other documents.
Follow This Checklist
- The Notice must be in writing. No text, email, or phone messages.
- It must include the names of all residents of the property.
- It must include the complete rental home address.
- The specific nature of the issue that must be corrected:
- If rent, the total amount of rent is past due.
- If a lease violation, the clause of the lease, and the nature of the violation.
- If any other issue, describe it in detail.
- The problem must be fixed within [state exact number of days], or the tenant must vacate the property. Remember that each state differs in the number of days depending on the violation.
- When calculating your date, do not count weekends, holidays, or court closures.
- If the issue is rent, the name, address, and phone number of the person or company to whom rent is due.
- The location where rent can be delivered or mailed.
Special Considerations for Different Types of Tenancies
Some types of tenancies have different rules, and these are quite different in different states. If you have any of these tenancies, you should always consult legal advice before proceeding.
- Commercial tenancies. Commercial evictions are usually due to breach of contract. Although it may come down to failure to pay rent, a commercial tenant’s “rent” is often different than a standard monthly fee like a residential tenant. A business rent may include partial taxes, utilities, and common area maintenance. A property owner must also consider the effects of evicting a commercial tenant versus letting the property sit vacant while they look for a new lessee. Commercial landlords may need the services of an attorney.
- Elders and special needs. Most states have lease and rental protections for special needs tenants. In many states, such as New York, California, and Connecticut, older tenants may cancel their lease without notice if they must move into assisted living.
Key Takeaways
- Adhere to Legal Requirements: Landlords must meticulously follow all legal procedures when evicting tenants to avoid complications and ensure a smooth process. This includes using preprinted forms, consulting with attorneys, and employing professional process servers.
- Proper Notice Format: Notices must contain accurate information, including the exact amount of rent owed, the correct names of all tenants, and clear payment instructions. Using templates can help landlords avoid common errors in notice formatting.
- Timely and Correct Notice Periods: Each state has specific notice periods for eviction, depending on the reason. Landlords must understand these periods and count days correctly, considering weekends, holidays, and court closures to avoid premature filings.
- Legitimate Reasons for Eviction: Landlords can only evict tenants for valid reasons outlined by law, such as non-payment of rent, lease violations, creating nuisances, or engaging in unlawful activities.
- Avoid Discrimination and Retaliation: Landlords must not discriminate against tenants based on protected characteristics and should refrain from retaliatory evictions in response to complaints or maintenance requests.
- Follow Proper Procedures: Landlords must comply with state-specific methods for delivering eviction notices and ensure all technical requirements are met to avoid invalidating the notice.
- Avoid Fraud and Misrepresentation: Landlords must not engage in fraudulent practices or misrepresent reasons for eviction, as this can lead to legal repercussions.
- Understand Special Considerations: Different types of tenancies, such as commercial or special needs tenancies, may have unique rules and protections that landlords must understand and comply with.
