With A Month To Month Rental Agreement A Landlord Has More Options Than Just The 5 Day Notice

Posted by Tristan R. Pettit, Esq. in Notices / Comments

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 for failure to pay rent,  a 14 Day Notice for failure to pay rent or for any other non-rent breach, 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 fails to pay rent.  A 5 Day Notice allows the tenant the right to pay the past due rent 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 pay rent 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.

Please be aware however that the Wisconsin Statutes do not allow a landlord the option of serving a 5 Day Notice on a M2M tenant for a breach other than non-payment of rent.  See sec. 704.17(1)(b), Wis. Stats.  It is not clear why the law is written this way and it is my opinion that is should be changed because not all landlords wish to terminate a tenant's tenancy with a 14 day notice just because they breached the rental agreement for something other than paying rent.  Although as written, Wisconsin law seems to require this.

     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 if the tenant fails to pay rent (which does allow the tenant the opportunity to cure the breach and remain as a tenant), or a 14 Day Notice if the tenant has committed a breach for something other than non-payment of rent (which does not allow the tenant the opportunity to cure the breach).

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.