What do you do when your tenants’ lease has expired but they won’t leave?
Most of us are familiar with a written lease having a clear expiration date. Once the lease expires, any tenant remaining in the property is a holdover tenant. You can file an eviction lawsuit to remove this type of tenant without notice as they had notice of the termination date the day they signed the lease. This is fairly straightforward. But what happens when you agree to accept rent from a tenant and extend their possession of the property beyond the expiration date of the lease? You’ve created a tenancy without a specific duration. A tenancy that must be explicitly and properly terminated to end it under Florida law.
A lease without a specific duration:
A lease without a specific duration could be year to year, quarter to quarter, week to week; or, most commonly, this type of lease is a month-to-month tenancy. There are various types of month-to-month leases. For example, there are ones that occur by default as described above. A month-to-month agreement may be intentionally created as to give each party the ability to quickly end the tenancy. It’s common for a traditional one-year written lease to contain a clause that automatically converts the agreement to a month-to-month tenancy when it expires, upon certain conditions outlined within the agreement. And, quite often, a month-to-month lease is an oral agreement between two parties. Nothing is written and the parties may not even believe they have a lease agreement. However, Florida law recognizes an oral contract; if one person lives in another’s house and pays them rent of any type, a lease agreement exists.
Terminating a month-to-month lease
A lease agreement without a specific duration may be terminated by written notice. The process is outlined in the Florida Landlord Tenant Act, Chapter 83 of Florida Statutes. Often the written terms of the lease will require a longer notice period than the Florida Statutes require. Once the notice expires and the lease is properly terminated, if the tenant has not vacated, an eviction lawsuit may be filed against the tenant for holding over without a lease.
A common mistake to avoid is trying to terminate a month-to-month lease with a “15 day” notice. Florida does not have a “15 day” notice per se. But, there is a notice service period of no less than 15 days prior to the end of a monthly period to terminate a month-to-month tenancy.
Another common mistake to avoid is improper service of the notice. The notice should not be emailed or texted. Even mailing is not the best route, as it increases the service period. Depending on the terms of your lease, delivering it personally to the tenant, or posting it on the property if the tenant is not home, is usually the best route.
It is important to ensure your notice complies with Florida Law to avoid the consequences of losing an eviction lawsuit due to a defective notice. We suggest you hire an attorney to draft the notice for you to avoid any potential mistakes.
Feel free to give us a call to schedule a consultation.
As of the date of this article, an eviction based upon a tenant holding over is not subject to the CDC Moratorium on evictions.