No Lease, No Rights, Not so Fast.

Many people are living in homes or apartments without a written lease. In some cases, there never was a lease, in others, the original lease expired. Sometimes, people believe that if someone is living in their property without a lease, it means the person has no rights. As the title of this post might suggest, such a belief is often wrong.

Is the Person a Tenant?

If someone has moved into your home, but you never intended for them to be a tenant, they may aquire the status of a tenant after a certain period of time. The only way to determine whether someone is considered a tenant is to check your state’s laws. Keep in mind though, that paying rent is not necessarily the thing that means someone has the rights of a tenant. Even a guest can develop the rights of a tenant if they stay in your home long enough and under the right circumstances. This is why many landlords will not allow guests to stay more than two weeks.

Obviously, it is easy to determine if someone is a tenant if they have been paying rent. But if they have not, make sure you check your state’s laws before you just try to kick the person out. For example, if someone is paying for groceries, has been living in your place for a month, is getting mail at your home, they may well have developed tenant rights. If you are wrong and you violate the law, it could get expensive for you. State law varies greatly on this issue, with some states providing substantially more rights to guests than others. Unfortunately, sometimes, when a guest becomes a tenant is not always clear.

For purposes of this post, we will assume that the person is a tenant.

Look at the Original Lease

If you have a lease with someone, and that lease expires, then the person is now a month-to-month tenant, unless the lease states otherwise. Generally, what this means is that the tenant remains under the rules of the lease, but now the landlord or the tenant can terminate with only 30 days’ notice. The original lease may state that a larger or smaller amount of notice is necessary, and generally, this is acceptable.

Many leases renew automatically without proper notice by the landlord or the tenant, meaning that it is important to review the lease and understand your rights and obligations under it when the lease is about to end. You don’t want to be stuck with a tenant or in a place for another year if the lease automatically renews and you don’t want to be there.

Regardless, if the lease states that it will convert to month-to-month, or does not state anything at all, it will become a month-to-month lease. In most cases, this means that either party must provide 30 days’ notice to terminate the lease. That notice needs to come at the end of the prior period. If your rent is due the first of every month, you will want to provide your notice by the last day of the the month before you want to move or have the person move out. You must provide your notice in the proper form under state law. This normally means written, and may mean certified mail. Make sure that you provide the proper type of notice or your termination may not work.

Once you terminate the lease, if the tenant refuses to leave at the end of the appropriate time period, you may begin the eviction process under the law of your state.

Never Had a Lease?

If someone is living in your property who never had a lease, but they qualify as a tenant, you may assume that they are a month-to-month tenant. This means you have to provide appropriate notice in an appropriate form as required under state law. As with someone who has a lease, this normally will mean in writing and may mean certified mail.

In most cases, the required period of notice is 30 days. However, different states have different laws and may require less (rare) or more notice. As a landlord it is critical that you follow the notice requirements, or you will have an issue when you try to evict someone who has overstayed their time. As a tenant it is critical that you follow notice requirements, or you will continue to owe rent until satisfactory notice is completed.

Determining How to Give Notice and How Much Notice to Give

The best way to figure out how to properly give notice and how much notice you must give is to look for a government-created guide for your state. Run a Google search for something like “terminate month-to-month lease STATE”. “notice requirements lease”. Many counties and states have a landlord/tenant guide with detailed information about how to handle the notice process. If you cannot find a government guide, the Nolo website often has useful information. Here is Nolo’s guide for Pennsylvania landlord/tenant law, for example.

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