When a Resident Fails to Leave After Giving Notice

Posted by  wasserman 

A tenant gave her 30-day notice to vacate.  I quickly found new tenants and signed a lease with them.  But now the current tenant wants to rescind the notice to vacate.  Since I have already signed a new lease, I would rather not accept this rescission.  What are my options?

Unfortunately, your options are limited.  Tenants here may unilaterally rescind their notices to vacate before they move out.  They can do that because a failure to honor or otherwise comply with a tenant notice to vacate is not a “just cause” reason to terminate the tenancy, meaning your recourse under the local rent law won’t include compelling the existing resident to leave.  And since you have already signed up a for a new tenancy, and because two tenancies cannot occupy the same space at the same time, you might be liable to the folks that have a new rental contract with you but are unable to move in as planned.  The lesson imparted by this scenario is to never sign a new residential lease until the prior occupants have permanently vacated, period.  Even if that means the incurring of some down time, so be it.

With regard to recourse, the current SFAA Tenancy Agreement states as follows:

      “If Tenant intends to vacate at the end of the original term of this Agreement, or at any other time after the original term of this Agreement, Tenant must give Owner at least thirty (30) days prior, written notice of Tenant’s intention to terminate the tenancy and vacate the Premises. Tenant may rescind said notice within five (5) calendar days after it is served on Owner without incurring liability to any person. Such rescission must be in writing, and delivered to Owner. Thereafter, if Tenant fails to vacate the Premises on or before the date set forth in Tenant’s notice, Tenant shall be liable for any costs incurred by Owner or any third parties who relied upon Tenant’s notice terminating the tenancy. Tenant’s failure to pay any such sums within twenty (20) days after demand shall be deemed a material breach of the Agreement.”

Even without this lease covenant, a resident that gives notice and then fails to adhere to it may ultimately become liable to you if the hopeful occupants sue for their money damages when you cannot give them their desired new home.  But, as is lamented over and over again in these discussions, actually collecting from current or former tenants poses logistical challenges and, as stated above, at the end of the day the people you signed the new lease with will not get what they want.  Thus, let the following be repeated:  Never sign onto a new tenancy until the existing one has been extinguished by all occupants, including subtenants, guests, and other inhabitants  occupying the rental housing.  Indeed, remember that even if the actual tenants give notice and thereafter depart as announced, if they leave others behind you confront the exact same problem of not being able to deliver the housing that you contractually promised to someone else.

So with regard to the hopeful renters that signed the new lease with you but are unable to move in, the good news is that their damages are limited to incurred moving bills and perhaps the expense of having to find a new comparable dwelling on short notice, which may entail holdover rents, hotel fees, and other temporary lodging costs.  What likely cannot be sought are punitive damages, attorney fees, and statutory penalties. Finally, for those of you doing buy-outs, remember that the buy-out law affords the tenant a non waivable 45-day rescission period, so even if someone leaves before the expiration of that time frame, they can always come back within 45 days after they signed the buy-out contract no matter what you have done or are planning to with the apartment.