Notice This! [Part 2]

NOTICE THIS! [PART 2]

As promised, this month’s article will further address the ever-popular topic of notices. Last month we discussed the procedural requirements and how a notice is to be delivered. This month–the substantive three basic notices–

  1. The 30-day notice to vacate.  This notice is used to terminate a month-to-month tenancy.  The law (KSA 58-2570) requires a “written notice given to the other party stating that the tenancy shall terminate upon a periodic rent-paying date not less than thirty (30) days after the receipt of the notice.”  That law will be construed by a judge against the person issuing the notice, so make sure it meets the requirements.  A full rent-paying period needs to be included in the notice period, and it also needs to be no less than 30 days.  So if February is involved, be sure to give it to them sufficiently early to meet both requirements.  If your rent-paying date is the first, you cannot give them a notice on the 15th to be out the next 15th.  The notice period needs to include a rent paying period and no less than 30 days.

    Applying last month’s discussion about the procedural requirement for at least a 3-day notice before filing suit, I’d include the following language in your 30-day notice–“The final three days of this 30-day period shall serve as the notice requirement of KSA 61-3803.”

    When terminating a month-to-month tenancy with a 30-day notice, you do not need to give a reason.  Tenant can also terminate the same way.

    If you have a lease for a term (say, 6 months or year), and if your lease doesn’t specifically address notice to be given if either party wishes to end the tenancy after the end of the lease period, I’d give them at least 30-days notice reminding them that the tenancy is over.  If the lease expires without renewal language, the tenancy should become month-to-month and could then be terminated with a 30-day notice.  I include in my leases language that if the lease is not renewed, it automatically becomes a month-to-month tenancy.  I believe that the language is technically not necessary, but it is helpful to tell the tenants in writing what the law is going to do.

  2. The 3-day notice to vacate for non-payment.  The mistake made most often by landlords is to not follow the law’s specific requirement to notify the tenant of “landlord’s intention to terminate the rental agreement if the rent is not paid within such three-day period.  Include specific language–“either pay this amount: $ or vacate the premises within three days.”  If they pay, you must accept the payment.  If they pay part of the amount due, you should accept it “with reservation” of your rights to continue the eviction.  They need to understand that making a part payment does NOT stop the eviction.
  3. The 14/30 day notice is worth several columns of its own.  The notice is used for tenant lease violations (or violations of state law affecting health and safety).  If you want to use this notice, you must first find some part of the lease (or law) that they are violating.  Then, the notice needs to tell them if the breach is not remedied in 14 days, the tenancy will terminate in 30.  This notice can be given anytime during the month.  It’s my position that the law specifically contemplates that some breaches cannot be remedied.  Judges sometime haven’t agreed with me.  You have the burden at trial to establish that the breach has not been remedied within 14 days. So you’ll need to be able to prove that the breach continues on the 15th day or thereafter.  This is tricky in many such cases–especially unauthorized people living at your premises.  Even unauthorized pets can be a problem.  Get a picture of doggy in the window that’s dated, or take a witness who can also testify that the breach was not remedied.

If you have a particularly tricky 14/30 day situation, get legal advice BEFORE you issue the notice.

Good luck!

P.S. With the new mandated electronic filing of evictions, we’re now being charged an additional $2 per case, so our fees are now $242 or $257 depending on if a sheriff’s writ is requested.

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–Larry Tenopir

NOTE: The opinions and analysis expressed in this column are those of the author, are general in nature and should not be considered to be legal advice specific to your individual situation.

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