When a Tenant Rescinds a Notice to Vacate

A resident gave me a 30-day notice to vacate two months ago but did not vacate as announced.  And now rent is not being paid.  What can I do?

This question highlights the fact that in San Francisco and in other places with strict rent control laws, a resident’s notice to vacate may be rescinded and revoked at any time.  Housing providers may therefore find themselves in uncomfortable situations when they sign new leases with tenants for apartments that are not actually vacant and available.  To understand why a resident is free to withdraw a notice to vacate, remember that a tenancy may only be terminated for one of the sixteen “just cause” reasons outlined in the San Francisco Rent Ordinance.  A tenant’s notice to vacate is not one of those approved grounds.  As such, never rely on these notices, and always wait until the housing is entirely empty before signing a new rental agreement with new tenants.

The SFAA lease agreement does, however, hold the rescinding resident financially responsible for this change of heart.  The lease provides you with the following remedy:

“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.”

In this situation, it appears as though the resident has rescinded the notice to vacate but is also not paying rent.  Nonpayment of rent is a just cause reason to seek termination of a tenancy and, as such, the owner here should retain counsel to begin that process.  Remember, by not vacating on or around the date stated in the notice, the resident committed to continuing with the obligations of the tenancy, meaning rent without offset is to be paid timely in exchange for enjoying the benefits of the rental housing.  If rent is paid in response to the legal notice to pay or quit, then the tenancy continues on a month-to-month basis until the resident actually leaves or a just cause reason is invoked to terminate the leasehold.

Interestingly, the state rent control law as originally enacted in 2019 permits an owner to terminate a tenancy in response to a resident’s unfulfilled promise to vacate.  Specifically, an eviction may be commenced when:

“[T]he tenant fails to deliver possession of the residential real property after providing the owner written notice as provided in Section 1946 of the tenant’s intention to terminate the hiring of the real property, or makes a written offer to surrender that is accepted in writing by the landlord, but fails to deliver possession at the time specified in that written notice as described in paragraph (5) of Section 1161 of the Code of Civil Procedure.”

In San Francisco, the local rent law is more restrictive than the state law and, as such, is controlling.  Therefore, your recourse lies solely within the lease agreement’s assignment of financial liability. 

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