Counting the number of days in a notice may seem obvious - counting is counting, right? How could you, dear reader, have gotten to this point in life, reading this sentence, without knowing the basics of counting? And yet, in tenant-landlord law, it is not so simple. When counting the days in a notice, there are Rules, rules that don't make sense in the basic world of one plus one.
Today, we're going to tackle the Rules.
The Rules That We Are Sure About:
- When counting the days in non-renewal notices, the effective date must be the last day in the rental period. (Most rental periods are 1 month, and most rental periods have the rent due on the 1st of the month, which make the last day of the month the end of the rental period.)
- When counting the days in non-renewal notices, the first day of the notice can be the day the notice was given to the tenant. This depends on the manner in which the notice was given.
These rules are from Wis. Stat. 704.19
The Rules That We Are Less Sure About:
(so be careful with them, and don't depend on them completely)
- If you are counting the days in a notice with 11 days or more, you may include Saturdays and Sundays and holidays.
- You may be able to make an argument that you have cured a notice or vacated within the timeline of the notice if the last day of the notice is a Sunday or a holiday and you cure the notice or vacate the premises on the next secular day.
- "Holidays" here are those that are listed below.
These rules are from Wis. Stat. 801.15(1)b, Wis. Stat. 990.01(4)
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What it means:
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Counting a 5 day notice: If a landlord is giving a 5-day notice to a tenant, the landlord cannot count the first day it was served.
- For example: 5-day is served on June 30, 2014. June 30 does not count (it was the day served), so the first day counted in the notice is July 1.
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Counting a 14 day notice: If the landlord is giving a 14-day notice to a tenant, the landlord cannot count the first day it was served.
- For example: 14-day is served November 12, 2014. November 12 does not count (it was the day served). The soonest that the notice could end would be November 26, 2014.
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Counting a 28 day notice: This kind of notice can be given either by the landlord or the tenant. If one party is giving a 28-day non-renewal notice to the other party (for terminating a month-to-month tenancy, say), then the first party cannot count the day that the notice is served, and must allow at least 28 days' notice before the end of the rental period.
- For example: A month-to-month tenant gives a 28-day non-renewal notice to the landlord on October 9, 2014. Rent is always due on the 1st day of the month, as payment for 1 months' rent, so the last day of the month is the end of the rental period. Here, October 9 would not count as one of the days (it was the day notice was served). 28 days is complete on November 6, but since that is not the end of a rental period, the soonest effective date would be November 30, 2014.
- For example: A landlord serves a 28 day non-renewal notice to the month-to-month tenant on August 11, 2014. Rent is always due on the 15th day of the month, as payment for 1 months' rent, so the 14th of the month is the end of the rental period. Here, August 11 would not count as one of the days (it was the day notice was served). 28 days is complete on September 8, but since that is not the end of a rental period, the soonest effective date would be September 14, 2014.
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Pro Tips for Landlords:
- Protect Yourself: Because of the Rules That We Are Not Sure About (that say Saturdays, Sundays and holidays don't count with notices that have 10 or fewer days, and that no matter the length of the notice, it can't end on a Sunday or holiday), the most conservative way to give a notice is to not include Saturdays, Sundays and holidays. That way, if you have to take your tenant to court, the court is very unlikely to throw out your notice based on timing.
- When is your office open? If you are asking the tenant to take some kind of action (pay your rent! get rid of that unauthorized pet!), and you give them an eviction notice, where they have to take some kind of action by some (thoroughly counted) date, make sure that you are available on that date. If you happen to be closed the entire month of December, then asking them to turn in their rent by the 15th or move out won't be a great play. How can you know what happened if you weren't even there?
- What if you get an inaccurate date in a non-renewal notice? So, let's say your tenant gives you a non-renewal notice, and it doesn't have the correct end date (ie, it doesn't end at the end of the rental period, or there aren't 28 days between being served at the end of the tenancy). The notice is still valid. The dates are not. The law is pretty clear about this. What this means for you is that the notice is valid, but the dates are adjusted so that the end date is counted correctly. This is as long as you can hold the tenant responsible for the costs under the lease, but if they wish to break their lease and move out early, then you still have the obligation to mitigate (I explained it here).
- What if you give an inaccurate date in an eviction notice? Let's say you give a 5-day notice, and you forget to take out weekends, and it possibly ends on a holiday, so you really need to give more than 5 calendar days. You don't have to give a whole different notice, but you do need to write a letter stating that the original notice gave an inaccurate date. Give the corrected date in that letter, and you're all set. If you and your tenant have agreed on a course of action (like a payment plan or a move out date, and it's all in writing), then you don't need to clarify your notice, since you have a kind of "mutual agreement."
- Date calculators: Sometimes it's tricky to count dates. If you do an easy search, there are many date calculators out there. Here's one. They can help count the dates, but make sure to double check against The Rules, above, to exclude the days that shouldn't be counted.
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Pro Tips for Tenants:
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What if your notice is not counted correctly? When there are errors in notices, we recommend that you WRITE THINGS DOWN, for the love of all that is holy to you, letting the landlord know about the error, and explaining the course of action that you plan to take.
- Evictions: If an eviction notice is poorly counted, be careful. If you need that extra time in order to resolve the situation (or for stalling purposes), then write a letter and say when you believe the correct end date for the notice is. Cite the laws, and explain what you hope to have accomplished by that time. Later, this could help you dispute an eviction, if the landlord takes premature action on a notice where the timing is too short.
- Non-renewal: If you get a non-renewal notice, and the dates are not right (ie, it doesn't end at the end of the rental period, or there aren't 28 days between being served at the end of the tenancy), then the notice is still valid. The dates are not. The law is pretty clear about this. Figure out when the correct end date is, and write a letter and explain that you'll treat this as a valid notice, but that the effective date will really be ____.
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If you need to argue that Saturdays, Sundays or holidays should not be included in your notice: the laws that support this reasoning are not slam dunk arguments for tenants. We see them work sometimes, but definitely not every time. However, the laws that support this are:
- Wis. Stat. 990.001(4) says that the last day in a notice can't be a Sunday or legal holiday: "If the last day within which an act is to be done or proceeding had or taken falls on a Sunday or legal holiday the act may be done or the proceeding had or taken on the next secular day."
- Wis. Stat. 801.15(1)b says that a notice of 10 days or less can't include Saturdays, Sundays and legal holidays: "When the period of time prescribed or allowed is less than 11 days, Saturdays, Sundays and holidays shall be excluded in the computation."
- Date calculators: Sometimes it's tricky to count dates. If you do an easy search, there are many date calculators out there. Here's one. They can help count the dates, but make sure to double check against The Rules, above, to exclude the days that shouldn't be counted.
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Bonus Round:
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What is the day that a notice is served? According to Wis. Stat. 704.19(7):
- If you give your piece of paper directly to the other person, then that is the day served.
- If you put the piece of paper on their door AND mailed it, then whichever is later date is the day served.
- If you mailed the notice within the state (everything happened inside Wisconsin), then the 2nd day after the date of mailing is the day served.
- If you mailed the notice across state lines (one person was in Wisconsin, one person was in a different state), then the 5th day after the date of mailing is day served.
- The day that the other person actually received it, is the day served.
- Who is a "landlord?" A "landlord" can mean the property owner, the manager, or whoever the landlord has allowed to act on their behalf. "Landlords" can also mean a tenant who is subletting, or acting as the landlord. (A while back, I wrote about tenants trying to get unwanted guests to leave, and they are tenants acting as landlords.)
- For non-renewal notices, what if there's a different amount of time for the notice? That amount of time is usually valid. The counting works like this: Add the number of days (60? 45? Whatever your lease says) to the date you'll be serving notice, and then from that point, push back to the next end date of the rental period (usually the last day in the month). I wrote about these issues recently! The whole extra-time thing is explained in Lapsed Leases, and if you have a weird winter month-to-month clause, you should read about the Winter No-Go Clause.
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Holidays: (side note: woah, guys. This was a surprise to me, too. Oh, the holidays that Wisconsin seems to have. Statutes are linked just because some of them seemed so improbable. Feel free to correct me if you know that these are not accurate)
- January 1 (or the day following if January 1 falls on a Sunday), Wis. Stat. 230.35 (4) (a) and Wis. Stat. 995.20
- January 15, Wis. Stat. 995.20
- The 3rd Monday in January, which shall be the day of celebration for January 15, Wis. Stat. 230.35 (4) (a)
- The 3rd Monday in February, Wis. Stat. 995.20
- Good Friday, the Friday before Easter, Wis. Stat. 801.15(1)a
- The last Monday in May, which shall be the day of celebration for May 30, Wis. Stat. 230.35 (4) (a) and Wis. Stat. 995.20
- June 19, Wis. Stat. 995.20
- July 4 (or the day following if July 4 falls on a Sunday), Wis. Stat. 230.35 (4) (a) and Wis. Stat. 995.20
- The day of holding the partisan primary election, Wis. Stat. 995.20 (This year, it was the 2nd Tuesday in August)
- The first Monday in September, Wis. Stat. 230.35 (4) (a) and Wis. Stat. 995.20
- The 2nd Monday in October, Wis. Stat. 995.20
- The day of holding the general election in November, Wis. Stat. 995.20
- November 11, Wis. Stat. 995.20
- The 4th Thursday in November, Wis. Stat. 230.35 (4) (a) and Wis. Stat. 995.20
- December 24, Wis. Stat. 230.35 (4) (a)
- December 25 (or the day following if December 25 falls on a Sunday), Wis. Stat. 230.35 (4) (a)
- December 31, Wis. Stat. 230.35 (4) (a)
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* Hi! Did you know that 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.
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