We had a call from a tenant recently, who believed that because her signed lease had lapsed (she was still residing in the unit), that none of the lease terms applied to her. Alas for her, this isn't true. In fact, this is something that many clients come in and find confusing - a housing counselor will ask the tenant if they have a lease, and the tenant will say no, even if he/she has a lease that was signed years ago and that everyone is still following.
So, in the interest of de-confusifying the masses, here's how lapsed leases work:
1. When a lease ends, sometimes the tenant will continue to live there, even though there isn't anything new that was signed. If the tenant keeps living there, paying rent, and the landlord keeps accepting that rent, then the original terms of the lease will hold, except the part where it ended. The tenancy becomes a periodic tenancy, more commonly known as a month-to-month tenancy, and just continues on until either the landlord or the tenant ends the lease or changes the terms somehow.
An example might be: a lease ends, and the tenant continues to pay rent. Landlord accepts that rent, and they continue on. Tenant still shovels the driveway (like in the original lease), and the landlord continues to pay the utilities (as in the original lease). The terms still hold, and the lease continues forward on a monthly basis until the tenant decides to move on.
2. A month-to-month tenancy can be ended by either the tenant or the landlord, and it's done by following the laws that apply to month-to-month tenancies. This is called a non-renewal, and it's different than a eviction - more like adding an end date to a contract that didn't have one yet. Wis. Stat. 704.19 explains that month-to-month tenancies can be ended by giving 28 days* written notice to the other party. Here's how those non-renewal notices work:
- The notice must end on the last day of a rental period. If rent is paid on the first day of the month, then the last day of the month is the last day of the rental period. If rent is paid on the 15th of each month, then the 14th will be the last day of the rental period.
- The notice has to be at least 28 days* notice - it can't be shorter, but longer notice can be given and can be required (see #3, below).
- If notice gives less than the correct number of days (i.e., only 22 days instead of the full 28), then the notice is still valid, but just postponed until the end of the next rental period where the correct number of days (or more) have passed. (If a tenant gives incorrect notice to the landlord, and then they move out instead of waiting until the time has passed, then it's more like breaking their lease, with the mitigation requirements on the landlord. See our Ending Your Lease page for more info).
- The notice has to be in writing, even if the original agreement wasn't.
- An example might be: Rent is due on the first of each month, and there was nothing in the original agreement about length of time required to end the lease. Tenant writes the landlord a letter, and sends it on the 30th of June, ending the lease the 31st of July. Landlord receives that notice by July 2, and tenant moves out before the month is over. At least 28 days' notice was given, and the contract is complete.
3. As we've discussed in the past, language in the original lease about ending month-to-month tenancies suddenly becomes enforceable. We most often see that as it applies to the amount of time that a tenant must give in order to end the lease. A lease might say that a tenant needs to give 60 days notice if they wish to give a non-renewal, and that's legal. Wis. Stat. 704.19(2)(a)1 says that 28 days' notice is required, unless another method is agreed upon by "clear and convincing proof," which can often be established by an agreement that everyone signed, such as an expired lease. Look for the *asterisk above and replace it with whatever amount of time is required in your lease, if this is your situation.
4. It is possible to make changes to a month-to-month lease, even if it is a lapsed lease. In order to make changes to the lease, the landlord would do so by giving the tenant the required written notice (either 28 days, or more if required in the old lease). The tenant can honor it and move forward, or give notice ending the lease (as in #2). A tenant can renegotiate the lease in a similar way - by asking for changes, and giving a non-renewal if those changes aren't accepted by the landlord (or the landlord might choose to non-renew at that point).
5. Year-to-year leases, and leases that automatically renew are a totally different animal. They have different rules about notices (I'm looking at you, Wis. Stat. 704.15), and continue on with the exact same terms until someone chooses not to renew in the annual window in which it is possible to give a non-renewal notice.
* 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.