One reason many landlords choose to enter into a month to month tenancy (m2m) with a tenant rather than a 1 year lease (or other term lease) is because it is easier to remove a tenant under a m2m tenancy.
In a m2m tenancy a landlord has the choice of serving a tenant with a 5 Day Notice, a 14 Day Notice, or a 28 Day Notice. One of the notices — the 28 Day Notice — can legally terminate a m2m tenancy without the tenant even having committed a breach.
The 5 Day Notice:
Under a m2m tenancy a landlord has the option to serve the tenant a 5 Day Notice if the tenant commits a breach. A 5 Day Notice allows the tenant the right to cure the breach within the 5 day cure period and if that is done then the tenancy continues and the tenant can remain. If the tenant fails to cure the breach within the 5 days then the tenancy is terminated and the landlord may file an eviction action against the tenant if they have not already vacated.
NOTE: I am not sure why, but many landlords believe that they are required to serve a tenant with a 14 Day Notice after the tenant has been served — and not cured – a 5 Day Notice. This is not true and is not required under Wisconsin law. If a tenant is served a 5 Day Notice for committing a breach and does not cure the breach within 5 days the landlord is NOT required to then serve the tenant with a 14 Day Notice. If a 5 Day Notice is not cured (and the tenant has not voluntarily vacated the property) then the landlord should immediately file an eviction action to remove the tenant. This is true whether the tenant is under a m2m tenancy or under a term lease.
The 14 Day Notice:
If a tenant commits a breach under a m2m tenancy the landlord can legally bypass the 5 Day Notice and proceed directly to a 14 Day Notice. Under a 14 Day Notice the tenancy will terminate at the end of the 14 days and the tenant has no right to cure the breach and remain. At the end of the 14 days the landlord is entitled to file an eviction to remove the tenant if they have not vacated. A 14 Day Notice is basically a “1 strike and you are out” notice. Landlords using m2m rental agreements do not have to give a tenant the opportunity to cure the breach.
This is a key difference between a m2m tenancy versus a term lease. If a tenant commits a breach for the first time under a term lease, the tenant must be given the opportunity to cure the breach. A landlord using a term lease can only serve a tenant with a 14 Day Notice if this is the tenant’s second time committing breach within a 12 month period and the tenant was previously served a 5 Day Notice for the same or similar breach.
The 28 Day Notice:
The other major distinction between a term lease and a m2m tenancy is that a tenant under a m2m can have their tenancy terminated even if they have not committed a breach with a 28 Day Notice. So a landlord using a m2m rental agreement has the option to issue his/her tenant a 28 Day Notice to vacate for any reason or no reason at all. The only restriction is that the landlord cannot serve a 28 Day Notice to retaliate or discriminate against a tenant.
Summary:
Under a lease for term a landlord may only terminate the lease if the tenant has committed a breach. If it is the first time that the tenant has committed a breach, a landlord must serve the tenant with a 5 Day Notice which allows the tenant the opportunity to cure the breach.
A tenant under a m2m tenancy is not afforded the same protections. A m2m tenant can be removed even if no breach has been committed by simply serving them with a 28 Day Notice. If the tenant has committed a breach, the landlord can choose to serve a 14 Day Notice (which does not allow the tenant the opportunity to cure the breach), a 5 Day Notice (which does allow the tenant the opportunity to cure the breach and remain as a tenant), or a 28 Day Notice if the tenant has not committed a breach but the landlord still wants the tenant to vacate (or if the landlord does not want to have to prove that a breach occurred if the tenant would contest the eviction).
The ease in removing a tenant under a m2m tenancy is a significant reason for first time landlords, landlords that have had difficulty with past tenants, or any landlord that wants to have flexibility to consider using a m2m rather than the ol’ standby 1 year lease. I personally only offer my new tenants a m2m rental agreement. It is only after a period of time has passed and the tenant has proven to me that they will pay their rent on time and that they will treat my rental property with care — in other words they have demonstrated responsibility — that I will offer them the opportunity to enter into a 1 year lease.
#1 by John "Dr Rent" Fischer on April 12th, 2010
| Quote
Question – Can you issue a 5-Day Notice to a month-to-month tenant for a material breach other than non-payment of rent???
704.17 (1) (a) covers rent non-payment and allows for either a 5-day or 14-day. But (b) which talks about breaches other than rent only discusses the 14-day.
#2 by Kyle Faber on April 12th, 2010
| Quote
The 28 day notice item is very interesting to me. How does one determine whether or not it was a proper notice, or one that was fueled by retaliation or discrimination?
Do you see those types of notices going to court? Wouldn’t it be a lot of “he said, she said” which ultimately just result in a win for whomever has the best documentation of situation?
#3 by Tristan R. Pettit, Esq. on April 14th, 2010
| Quote
Thanks for your comment and question Kyle.
Yes, evictions based on 28 day notices do go to court. Typically the tenant just doesn’t understand what a 28 day notice is and that the landlord has the right to issue it. They refuse to leave and contest it in court arguing that they paid rent and didn’t breach the lease – not understanding that that is irrelevant in most situations in which a 28 day notice is served.
You are correct that if a tenant argues retaliation or discrimination that you often hace a “he said-she said” situation. The tenant will have the burden to prove retaliation (by showing they exercised a legal right of theirs that pi$$ed off the landlord) or discrimination (by proving that they are a member of a protected class and that the landlord issued the notice solely because of that) and then the burden will shift back to the landlord to prove that s/he had a non-discriminatory or non-retaliatory reason for ending the tenancy. So if a tenant argues retaliation or discrimination the landlord may end up having to prove that a breach occurred if the tenant meets his/her burden initially.
There is a presumption that if you serve a 28 day notice on a tenant within 6 months of them calling the building inspector to report a violation that you are acting in retaliation. So if the tenant has recently asserted any of their legal rights and there is a breach of some sort by the tenant it is better for the landlord to serve a notice for breach (5 day or 14 day) rather then the 28 day.
#4 by John "Dr Rent" Fischer on April 15th, 2010
| Quote
I just had one of these last month. The (fairly new) month-to-month tenant had moved 4-7 people in with her into a small 1 bedroom apartment, and one of those people came complete with a couple of small dogs in this no pet building.
The problem with a 5 day is proof. If they choose to fight this, it would not leave our very landlord-friendly court commissioner and go to one of our 5 judges… and I would have to be able to prove how many people lived there.. or prove their were dogs there. Depending on the judge, that is easier said than done.
I instead just did the 28 day. It adds 3 weeks to the process, but I no longer need to prove cause. They did call the building inspector, but called him litterally 2 days before the court date. The building inspector did not issue any citations, but did give the tenant a warning.
I got lucky that the tenant did not say at the initial appearance that the inspector was called. Because of timing, I would have won in front of a judge, but still I would have had to try the case. Her defense for the initial appearance is that she couldn’t find anywhere else to go.
To which, our commissioner informed her that is not a legal defense and is not the landlord’s problem, and awarded me my eviction.
#5 by Crystal on October 1st, 2011
| Quote
I have a question about an informal (non-written) month to month lease. I gave the tenant (technically a roommate at my house) notice today (the 1st of the month) that she needs to be out by the end of this month. She originally asked for 60 days, which I said wasn’t going to be possible. She then changed her mind and decided to move out completely today. When she left, she asked for not only her security deposit (which I have 21 days for, correct?) but also for October’s rent back. My argument for not giving that to her was that I gave her 30-days notice, she still “has” the room for this month. She did not give any notice, so I do not have to repay her this month’s rent, do I? She is threatening to go to small claims, but I don’t see how her argument would hold up.
Thanks!
#6 by Tristan R. Pettit, Esq. on October 4th, 2011
| Quote
Crystal — I cannot give legal advice via this blog.
Even if a tenant breaks a lease for term or in your case vacates and doesnt give notice, a Wisconisn landlord has a duty to attempt tomitigate the tenants damages by making reasonable efforts to re-rent. So if the tenant vacates and you are able to re-rent the unit the next day for the same amount that the breaching tenant was paying then the tenant may not be responsible for rent beyond that day.
So the answer to your question is very fact specific and you should retain a lawyer to assist you in making the correct decision because if you choose to keep the tenant’s security deposit and a court decides that you improperly kept it, your tenant may be entitled to double her security deposit plus his/her attorney’s fees.