Plaintiffs sued Defendant when he did not vacate the apartment he leased from Plaintiffs. On August 28 Plaintiffs wrote Defendant a letter terminating the lease and stating that Defendant should vacate by September 30. However, Defendant did not receive the letter until September 6. Defendant did not vacate the apartment until December 11 and did not pay rent for October, November, or December. The trial court ruled in favor of Plaintiffs.
In a month-to-month tenancy, if the date set in a notice for termination is less than one month prior to the end of the next rental period, the notice fails to terminate the tenancy at any future date.
John and Una Davidson (Plaintiffs) leased a one-bedroom apartment to Edward Kenney (Defendant). The lease began June 1, 1993 and expired on May 31, 1994, at which point the tenancy continued month-to-month. Rental payments were due on the first day of the month and each rental period ended on the last day of the month. The landlords could terminate the tenancy, but only upon giving notice at least one month before the end of the next rental period. In August 1996, Plaintiffs became dissatisfied with Defendant as a tenant and drafted a termination notice dated August 28. The letter specified that Defendant should vacate by September 30. However, because Plaintiffs had difficulty locating Defendant, the letter was not delivered until September 6, 1996. Defendant did not vacate the apartment on September 30. On October 31, Plaintiffs issued a new letter ordering Defendant to vacate immediately. They filed a Complaint for Unlawful Detainer on November 6. Ultimately, Defendant did not vacate until December 11. He did not pay rent for October, November, or December. On May 22, 1997, the trial court ruled in favor of Plaintiffs, granting a judgment in the amount of $5,121.00.
Whether, in a month-to-month tenancy, a notice for termination terminates a tenancy at any future date if the date set in the notice is less than one month prior to the end of the next rental period.
No. The trial court’s ruling is reversed and the case is remanded to allow Plaintiffs to re-plead facts that would allow them to recover unpaid rent and damages for waste. In a month-to-month tenancy, if the date set in a notice for termination is less than one month prior to the end of the next rental period, the notice fails to terminate the tenancy at any future date.
Unlawful detainer occurs when a defendant remains in possession of property after the termination of a lease. There can be no finding of unlawful detainer until after the defendant is given proper notice and the date set for termination has expired. The applicable Missouri statute requires that a landlord in a month-to-month tenancy give the tenant one month’s notice in writing. Because a tenancy can only be terminated at the end of a rental period, notice must be given at least one month before the end of the next rental period. The Restatement (Second) of Property states that if the date of termination indicated in the notice provides for insufficient time before the end of the next rental period, the notice is nevertheless effective to terminate the lease at the earliest possible time after the date indicated. Thus, Plaintiffs argue that, although their notice of September 6 did not give the required thirty days’ notice before September 30, it should have been sufficient to terminate the tenancy at the end of the next rental period, October 30. However, many states, including Missouri, strictly construe notice requirements. In these states, a notice that indicates a termination date that provides insufficient time before the end of the next rental period is ineffective to terminate the tenancy at any subsequent date. Therefore, this court holds that the September 6 notice failed to terminate the tenancy at any subsequent date. Furthermore, the October 31 notice, which simply required that Defendant vacate the premises immediately, also failed to adhere to notice requirements. Plaintiffs failed to give adequate notice of termination to Defendant.