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 how the rental agreement is drafted.

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. So, both landlord and tenant should understand that unless they enter into a new rental agreement prior to the ending of the initial lease term, that 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 just end; it either auto-renews (for the same lease term) or auto-converts (to a month-to-month tenancy), and as a result, the lease contains 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 could choose to vacate at the end of the term or continue to reside in the rental unit, because the lease language references a continuation.  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 important distinction between these two different scenarios, which can result in the landlord being placed in a precarious situation that might end with the tenant obtaining a money judgment against the landlord.

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 it is a market-rate property, whether or not the landlord wants to continue renting to the tenant after the lease ends.  If the landlord does want to continue the tenancy, the landlord and tenant should communicate and decide how they want to continue the tenancy and then enter into a new rental agreement, whether that be 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 it is not legally required that the landlord 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.  So, best practice encourages a landlord to proactively alert the tenant of his/her 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 would be in the landlord’s best interests 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 like in Scenario 1 and have it just 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 positives and negatives and decide which situation the landlord prefers. 

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.

T