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  1. #1
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    Mar 2013
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    Default Re: Can You Charge a Subtenant Rent if They Don't Give Proper Notice to End a Tenancy

    Quote Quoting Aquarius9217
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    The statute you referenced also says under (4) that notice must be in writing.
    Correct.

    Quote Quoting Aquarius9217
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    It sounds like based on (6) in that same statute, that the day he moved out started the 28 day notice, and he is officially terminated at the end of it.
    Now that you've cleared up the dates and the vagueness of his oral notice, yes, that's correct (except for the 28 day thing, which I'll touch on later).

    Let's call April 17 the surrender date and assume (you didn't say) that he paid April's rent on April 1.

    Now let's look at Paragraph 6:

    "(6) Tenant moving out without notice. If any periodic tenant vacates the premises without notice to the landlord and fails to pay rent when due for any period, such tenancy is terminated as of the first date on which it would have terminated had the landlord been given proper notice on the day the landlord learns of the removal."

    Which has to be interpreted in conjunction with Paragraph 2(b):

    "1. A periodic tenancy can be terminated by notice under this section only at the end of a rental period."

    See if Mr K agrees with this:

    For notice to be proper, the tenant would have had to give you written notice at least 28 days prior to the end of April to terminate the tenancy on April 30 and he would have had to pay April's rent and he would not be entitled to a partial refund if he left prior to April 30.

    Moving on to the move out date of April 17 without proper notice. The 28 day notice thing doesn't apply to that because proper notice given on April 17 would have been for a move out date of May 31 and he would have had to pay you for the Month of May and not be entitled to a refund for May either.

    Quote Quoting Aquarius9217
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    So you are suggesting that I am due rent until the end of April, and that's it? Would you mind elaborating on how you concluded that the end of April was still owed, and not through the day he moved out?
    Now that you've clarified the dates and the lack of notice, it actually appears that he would owe you for the full month of May in addition to no refund for the month of April.

    Two things:

    1 - Paragraph 6 applies if he doesn't pay you for any required rent period. You will have to wait until after May 1 (if that's the rent due date) before you can pursue May's rent in court.

    2 - There is still the matter of mitigation. I suggest you read 704.29 very carefully. My take on that is you haven't "expressly agreed to accept a surrender of the premises and end the tenant's liability" because he left the keys while you weren't home and you have continuously insisted that he still owes more rent. The problem with that is that you have to start advertising for a replacement roommate now and get one as soon as reasonably possible. The longer you wait to start mitigating the more likely that he will be successful in raising the defense of lack of mitigation and reduce or eliminate your ability to collect any additional rent. In fact, if you decide not to replace him then my interpretation is that you would owe him a refund for the period from April 18 to April 30. By not mitigating you will have relieved him of liability as of his move out date.

    Quote Quoting Aquarius9217
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    Based on the things you and adjusterjack have been saying, things I was told on another forum, and my desire to just move on from this, it's sounding like I shouldn't push the improper notice issue, and try and (best case scenario) get him to drop his claim of a refund and collect the utilities. It all really depends on how adamantly he intends to pursue his belief that I owe him the refund, I might end up having to just write off the utilities in the interest of getting it over with. The amount I would "owe" him, assuming I considered his refund claim valid, would be less than $100.00 when subtracting out the utilities, and I don't see him pursuing that amount in any fashion.
    Yes, from a practical standpoint, it would appear prudent to get out from under this as cheaply and as quickly as possible.

    I faced exactly that option many times during my 20 years owning rental properties.

  2. #2

    Default Re: Can You Charge a Subtenant Rent if They Don't Give Proper Notice to End a Tenancy

    adjusterjack, just in case you were curious how this developed, and in case Mr. Knowitall intended to reply to your mention, I thought I would post again. I don't need any further advice, but feel free to comment if you like.

    I have an aunt who works in a law office, so I talked to her and asked if anyone there would look at the info on the situation and give their thoughts. Sounds like your thoughts were pretty accurate, adjusterjack.

    There were 2 scenarios, based on whether or not I was going to seek a replacement. 1.) If I am going to find a replacement, then I'd win May rent and utilities guaranteed. I would need to advertise the place fairly, but no court would expect that I would find someone to move in on May 1 when notified April 17, and that most tenants have to move out of their present living situation and want to start on the 1st of a month, so I wouldn't need to try and get someone in the middle of May to reduce subtenants rent exposure (but if I happened to find someone to move in sooner than May 31, the subtenants responsibility would end the day the new tenant arrives).

    2.) If I chose to live alone going forward, things are a bit more dicey. He said the "acceptance of surrender" isn't automatic upon getting the keys, and that it's an option for the landlord to choose to not hold the tenant responsible for further rent, and the tenant would want that in writing typically. Certain actions may also be considered acceptance of surrender, but none applied here. However, in that same subsection, it says if the landlord decides to utilize the property during mitigation attempts, the tenant has to be credited the value of that usage against any rent they would owe. In this case, the space he was renting now became space I could utilize as the sole renter. In the case of a 2 person rental unit becoming a 1 person rental unit, that value would be half of the rent, so it would basically offset itself.

    So basically the advice was, if I'm seeking a new subtenant, push for May rent and utilities. If I'm going to live alone, try and settle with the subtenant and get it in writing that both sides agree no additional money is due to the other. I was told if I tried to take scenario 2 to court, it could go either way or somewhere in the middle, and I might not get much for my trouble after court costs.

    So I'm going to try and get him to agree we are even right now, and he doesn't owe me utilities and I don't owe him a partial refund. If he is adamant, it seems the smartest move is to just give in and pay the partial refund minus utilities.

    Thanks again for your time and thoughts.

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