Can A Landlord Require A Tenant To Provide Written Notice To Vacate Prior To The End of A Lease?

The answer to the above question is that “it depends.”  Specifically, it depends on the drafting of the rental agreement.

Scenario 1

If a lease for a specific term just ends, any language requiring a tenant to provide written notice to the landlord if the tenant intends to vacate at the end of the lease will probably not be enforceable.

Why? Because both parties know at the outset, when they signed the lease for a specific term, that the lease does not contain any language about the lease continuing after the initial term, and as such, it just ends. Both the landlord and the tenant should understand that unless they enter into a new rental agreement before the end of the initial lease term, the tenant must vacate by the end of the lease term.

Scenario 2

Now, if a lease for a specific term is drafted so that it automatically renews for another like term or automatically converts to a month-to-month tenancy at the end of the initial lease term, you have a completely different situation than the one referenced in Scenario 1.  In this situation, the lease does not end; it either auto-renews (for the same lease term) or auto-converts (to a month-to-month tenancy). As a result, the lease includes language addressing the continuation of the tenancy beyond the initial lease term.

Under Scenario 2, the landlord does not know what the tenant will do at the end of the initial lease term.  The tenant may vacate at the end of the term or continue residing in the rental unit, as the lease provides for continued occupancy.  So, if the landlord does not know what the tenant intends to do at the end of the initial lease term, it is reasonable (and enforceable) to require the tenant to provide the landlord with written notice as to what s/he will do.

Unfortunately, some landlords do not understand the distinction between these two scenarios, which can put them in a precarious position and may result in a money judgment against them.

Scenario 1 - Recommended Best Practice for Landlord

If your lease is written as described in Scenario 1, where it just ends at the end of the lease term, the recommended best practice for the landlord to follow would be to have a reminder in your calendar approximately 90 days before the lease ends.  The landlord should now determine, assuming the property is market-rate, whether to continue renting to the tenant upon expiration of the lease.  If the landlord wants to continue the tenancy, the landlord and tenant should communicate to agree on how to proceed, then enter into a new rental agreement, whether another lease for a term or a month-to-month periodic tenancy.

If the landlord decides that the tenancy over the initial lease term was problematic and as a result, the landlord does not wish to continue the tenancy than the landlord should notify the tenant, in writing, that the tenancy will not continue beyond the initial lease term and that the tenant will need to move out on or before the last day of the lease term.  In a market-rate rental property, a landlord is allowed to non-renew a tenant’s tenancy for any reason or no reason as long as the reason is not discriminatory or retaliatory.  So, a landlord needs to understand this and make sure that it has sufficient documentation in the tenant’s file to support the non-renewal and defend against any claims by the tenant that the non-renewal was for discriminatory or retaliatory reasons.

While the landlord is not legally required to provide the tenant with a new rental agreement or a notice of non-renewal, it is best practice to do so.  If a landlord fails to do that, it will have a confused tenant who is not prepared to vacate and locate new housing and then “holds over” improperly.  It is not in the best interest of the landlord or the tenant to be stuck in such a situation.  Best practice encourages a landlord to proactively inform the tenant of their options after the lease term ends.

Scenario 2 - Recommended Best Practice for Landlord

Even if the landlord’s rental agreement is drafted in such a way that it either auto renews or auto converts, and the landlord sent the separate written notice reminding the tenant of this as required per Wis. Stat. 704.15, it is still to the benefit of the landlord to touch base with the tenant to confirm the tenant’s intentions at the end of the lease term. While it is not legally required, it is in the landlord’s best interest to understand what the tenant will do so the landlord is not surprised and can pivot as needed.

Conclusion

So, what is the best option for a landlord?  Should it draft its lease as in Scenario 1 and let it end?  Or should the landlord draft it like in Scenario 2 and have it automatically renew for another like term or automatically convert to a month-to-month periodic tenancy after the initial term? 

There is no correct answer.  There are pros and cons under both scenarios. A landlord must weigh the pros and cons and decide which option they prefer. 

One thing I have learned over almost 30 years of representing landlords and property management companies is that there is no legal way to combine the two scenarios so that there are only positives and no negatives. If I had $1 for every time that I have been asked that question, you know how the saying goes.

Take care and Happy Landlording.

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