Not all rental tenancies need be in writing, and many are not. This article will briefly discuss how to properly terminate a month-to-month (M2M) tenancy, one of the more common residential tenancies, when a formal written lease is absent or has since expired by its original terms. In many cases if a written lease is not renewed or extended, and the tenant remains and continues to pay rent on a monthly basis, with the landlord’s permission, a periodic M2M tenancy results, even without any express agreement.
Termination of a M2M tenancy is covered by in the Forcible Entry and Detainer (FED) Act. Notice of termination of a M2M tenancy must be given 30 days prior to the effective termination date. Additionally, the termination date must be at the end of a rental period, which is typically the end of the month. (735 ILCS 5/9-207(b)) For example, if a landlord/tenant wants to terminate the M2M tenancy on November 30, when rent is due the first of every month, notice must be given prior to November 1. If notice is given on November 1, the termination notice won’t be effective until December 31.
Additionally, since there are less than 30 days in February, to terminate a M2M tenancy on February 28, or February 29 (in leap years), you need to provide the notice no later than 30-days prior to that date, which would be by January 29, or January 30 (in leap years).
When computing time for notice purposes, is it important to reference the Statute on Statutes. Specifically, 5 ILCS 70/1.11 provides that when computing time, the first day is excluded and the last day is included, unless the last day is a Saturday, Sunday or a State Holiday, in which case it shall also be excluded. Therefore, if 30 days after the date of notice falls on a Saturday then you must provide for an extra 2 days of notice. It is generally a good idea to error on the side of providing a few extra days of notice, and may also help the Landlord/Tenant receiving the notice, to either find a new tenant or relocate.
Chicago RLTO:
If the property is subject to the Chicago Residential Landlord and Tenant Ordinance (Chicago RLTO), there are separate notice requirements for landlords providing a termination notice. The Chicago RLTO requires notice of 30 days prior to the stated termination date, which applies to month-to-month tenancies and existing rental agreements. A failure to provide the 30 day notice, prior to the termination date, permits the tenant to remain in the unit for up to 60 days after the date of notice, regardless of any existing termination date in any rental agreement. So even if there is an express termination date in a written lease, without proper notice the tenant is permitted to stay beyond that date under the Chicago RLTO. This would likely cause problems if the landlord has already entered into a future lease or plans for the unit.
Service of Notice.
Section 9-211 of the FED Act permits demand or notice to be served by delivering a written (included printed or partially printed) copy thereof to the tenant, or by leaving with some person of the age of 13 years or upwards, residing on or in possession of the premises; or by sending a copy of the notice to the tenant by certified or registered mail, with a return receipt from the addressee. It is important to note that this is different than the requirement to serve notice for demand pursuant to section 9-102 of the Act, which does not permit sending notice via certified or registered mail. It may be helpful to speak with an Attorney regarding the proper methods and contents of the notice.
Effect of giving proper notice.
Tenant still owes the applicable monthly rent for any period in which tenant remains in the unit. The Chicago RLTO states that the rental rate is based on the rental amount in the month immediately preceding the notice, unless that rent was waived or abated, in which case the rent is based on the rate established on the last date that a full rent payment was made. After giving proper notice, if the Tenant fails to vacate the property by the termination notice the landlord may file an action for eviction or ejectment.
If you are unsure about your obligations/rights, or would like to speak with an Attorney, please contact Blume Law.
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