One of the reasons that I'm so excited to be writing this blog series is that I get to answer Those Questions. Those Questions are the ones that our housing counselors get that are so wearily complicated, and clients get so lost in the twists and turns, the if-this-then-thats. Here, I have the luxury of writing it down so that the complications can be explored.
This is one of Those Questions, sampled from many we've received: Dear TRC, I am a tenant living in an apartment. I have a year long lease going from August 1, 2013 - July 31, 2014, but my lease also says that 60 days' notice is required to end the lease. I want to leave on July 31, but my landlord says I had to give 60 days' notice to end the lease when it says, on July 31. What should I do?
Here are the components of this question:
- a lease with a term (ie, a year long lease, a 9 month lease, any defined period of time), where beginning dates and end dates on the lease are written down, AND
- a requirement to give notice to end the lease (could be 60 days, 1 month, 30 days, 45 days, 90 days)
What's the deal? Are those legal? If the lease a defined period of time, doesn't it end when it says it ends? For everyone involved, this can get pretty confusing. Explanations, with tips for landlords and tenants, below.
(and while you read, you can listen to this)
There are 4 reasons why this is a complex issue:
1. Contract Law Issues: Leases are contracts, and so are subject to interpretation under contract law. Contract law is tricky. Whereas tenant-landlord law is moderately straightforward (relevant laws are available on WI Legislative Documents website), contract law has hundreds of years of precedent set over hundreds of years of arguing.*
On our current topic, contract law comes to a head in regards to this question: what happens when a contract conflicts with itself? In our situation, there is a specified end date on a contract (in our example, July 31, 2014 is very clearly the last date on the lease), but there is also a requirement that that the tenant give notice to actually end it on the end date (in our example, 60 days' notice). So does that mean that the end date isn't really an end date? Does it mean that both things are true? What happens when the notice isn't given? An easy Google search reveals a couple relevant contract law topics:
- Contra Proferentem: As Wikipedia reveals to us, when there is a conflict in the lease provisions, especially where there is unequal power in the people agreeing to the contract (landlord offers; tenant either accepts or rejects and rarely changes), then preference is given to the person who did not write/offer the agreement. So, contra proferentem would favor the tenant's interpretation of the conflicting provisions over the landlord's interpretation.
- A Mutual Mistake: Where two parties hold a different understanding of the terms of a contract, it is possible that the contract may be void as a result of the mutual misunderstanding. However, if it is possible to interpret the contract so as to reasonably do both, it is not voided. Wikipedia reference again. Therefore, a mutual mistake where both interpretations can occur, seems reasonably possible.
2. Automatic Renewal: One of the issues that's confusing here is, what happens when the correct amount of notice is not given? What is the penalty? It could be a breach of lease (an eviction notice? For when the lease is ending? That doesn't make sense.) Or, it could imply that the lease will be automatically renewed if correct notice is not given. However, if that's the case, then the landlord has to comply with the laws regulating automatic renewal (insert ominous music). Here's what those laws say:
- Wis. Stat. 704.15 says that a landlord must give written notice to the tenant within 15-30 days before when the tenant's non-renewal notice is due, informing the tenant of their right to stop the automatic renewal process. (In our example, 60 days before July 31, 2014 is June 1, 2014, meaning that a tenant would need to send a letter to the landlord by June 1. The landlord, in order to comply with this automatic renewal law, would need to send notice to the tenant sometime exactly between May 2 - May 17, to tell them about the automatic renewal).
- If the landlord does not send the automatic renewal letter to the tenant in the appropriate time frame, the automatic renewal is not enforceable.
- In which case, if the landlord doesn't jump through the hoops, the requirement of notice in the lease is unenforceable.
3. Ending a Lease Early: A different interpretation that tenants often have of this clause is that it will allow them to end their lease prior to the end date, with the correct amount of notice. For example: a tenant gets a new job in a different state, and they want to leave before July 31, 2014. So, they give 60 days' notice, believing that it will cancel their lease at that 60 day point.
Landlords often do not believe this interpretation, but based on the contract law stuff above, the tenants might have a solid counter-argument. They might not, though - we aren't attorneys,* and these kinds of things are very much decided based on how a judge would read the law and the exact wording of the contract.
4. Lapsed Leases: As explained in our recent post on lapsed leases, the notice requirement (i.e., 60 days' notice required to end lease) does become enforceable once a lease ends and turns into a month-to-month tenancy.
Upshot: there's not really a clear answer! But there are good arguments that can be used, depending on what you're hoping for. In the end, it's up to a judge, and what they think is the clearest legal answer.
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Pro Tips for the Landlords in the Crowd:
Usually, landlords who have been in this game for a while don't put these clauses into a lease. That's because these clauses are not straightforward, and therefore not easily enforceable. Moreover, there are different ways to get what you want, which are much more effective. The (perfectly reasonable) goal for landlords in this situation is almost always that they want some notice before the tenant takes off. That makes sense. Here are some other, clearer ways, to get that:
- Offer a discount in rent for those that renew. In this scenario, a landlord will send an offer to renew a couple months before the lease is over, saying that if tenants renew now, their rent will stay the same. If they don't renew, it'll go up, say, $15/mo as a month to month tenant.
- Send a lease renewal with a deadline, and then start to bring prospective tenants by the apartment. (With appropriate notice, of course. And possibly a letter saying that since you haven't heard about their intentions to renew, you're assuming you'll need to find new tenants.)
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Pro Tips for Tenants:
These clauses are really confusing, and if they aren't clarified while the lease is being signed, they may open you up for conflict and argument later on. So, what should tenants do? It depends what course of action you are most comfortable with - arguing? Clarifying ahead of time? It depends on your style.
- If you don't mind taking something to court, this might not be a problem for you. Leave it alone, get your arguments ready. Or, perhaps, stay a while.
- If you are conflict averse, it might be helpful to clarify the exact meaning with the landlord while signing the lease. Make a note in the lease, and have both parties initial it.
- Please understand that these arguments aren't 100% guaranteed, or any other kind of guaranteed.* The exact wording for your situation, the recent decisions about similar things in higher courts, the experience of a judge... many factors will affect the outcome of any suit brought because of these issues.
- You can always leave - check out our page on Ending Your Lease, and look especially towards Breaking Your Lease and Mitigation.
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* Hi! We are not attorneys here at the TRC! And this isn't legal advice, either. If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.