What is a notice to vacate and when/how do you use it? In Minnesota, a notice to vacate is a notice by either party (but generally considered to be used by landlord) to give tenant notice to move out in writing. This is used when a tenant in a month to month lease or their lease is about to end (also called a non-renewal). You are terminating tenancy at will which is referenced in MN Statute 504B.135. In other locations this can also be called a notice to quit, but that is not as common name in Minnesota.
This notice must be in writing on paper and handed or mailed to the tenant. Email is a good backup, but cannot be the primary delivery method. I recommend posting the door, mailing a copy via USPS and email. Text and verbal notice is not acceptable in court. Make sure that you are giving them at least 1 full rental period unless your lease specifies a longer period (like 60 days). This period also rounds up so if you give them notice on October 5 and your lease specifies 60 days, then their move out date is December 31.
So how or why would you use this. There are several different reasons:
- Maybe you want to sell the property and want to update it before you put it on the market. Single family homes are more difficult to sell with tenants in place. Showings are more challenging and owner occupant buyers are often reluctant to make offers on properties with tenants as they don’t understand the rental business and don’t want to deal with tenants. Having the tenant move out prior to putting it on the market is best solution.
- The tenant has been difficult to deal with. Maybe they pay their rent late every month. Maybe they are committing lease violations (which are difficult to prove and even more difficult to evict for). Maybe the are bothering other tenants. Whatever the reason, you just want them out. Alternatively, giving them a notice to vacate can often get them to comply and stop the problem behavior as they realize you are serious.
- Related to #2, a notice to vacate can be used as an alternative to eviction. Maybe the tenant owes you money, but they are also a problem tenant. This allows you to move the tenant out, but not have the expense of an eviction (which in Minnesota will run about $1000 with an attorney). Unlike filing an eviction for past due rent where the tenant can simply show up in court and pay and stay, a notice to vacate has no defense.
So what happens if the tenant does not leave on the date I specified? You would still need to file an eviction for holdover. Couple notes about filing a holdover eviction:
- You cannot accept any rent after the move out date. If you do, court could find that you restarted the occupancy. Turn off all e-payment opportunities and do not cash any subsidy payments.
- Do not make any agreements unless they are in writing. When you go to court, it is common for the tenant to claim that you said it was alright to stay till some later date. If you do everything in writing then it is easier to say that “no judge, I never said that, I only do things like in this in writing”. BTW, text is not writing. Do everything on paper or via email and save your records.
- I would be contacting them multiple times prior to their move out date to remind them they need to be out.
- Use an attorney to file the holdover. Do not do this yourself. Post-COVID eviction court has become increasingly complicated with free attorneys available to any tenant that wants one. You don’t want to be sitting across Zoom with a pro-bono attorney that normally charges $250/hour.
The notice to vacate can be a useful tool as a landlord to fix tenant issues. Consider it next time.