A holdover tenant is one who does not vacate at the end of the lease term. In Florida, leases do not automatically renew unless the lease specifically states that it will. Barring any provision in the lease, the tenant is expected to vacate the premises and no warning or notice is required. However, it is always good practice for a landlord to give a notice of non-renewal if he is able to as Judges often prefer to see some prior notice being given.
Example 1: Larry enters into a written lease agreement with Ted. The lease does not require either party to give notice before terminating the lease agreement. At the end of the lease, Ted refuses to vacate. Ted is now a holdover tenant who now has no legal right to reside in the property. Larry refuses to collect rent from Ted and starts the eviction process.
If you have a holdover tenant and wish to evict on the basis of nonrenewal, ensure that you take the following steps:
- Check the lease to make sure that if there is a clause that states that “notice must be given,” that the correct amount of time is provided. For example, if the lease states that the landlord must give 30 days’ written notice, make sure that 30 days or more were given, and that the notice expires the day the lease ends.
- On many leases the landlord requires notice from the tenant, but landlord does not have to give notice. Florida Statutes state that if the landlord requires the tenant to give notice before terminating the lease, the landlord is required to do the same. For example, if the lease says tenant must give written 60 days’ notice of intent to vacate, the landlord is automatically required to do the same.
- Do not collect any rent after expiration of the lease. If you collect rent after the expiration of the lease agreement, you have created a month to month tenancy, sometimes referred to as a tenancy-at-will. At that point the tenant is no longer a holdover tenant, but a month to month tenant and a statutory 15 Day Notice is required unless the lease specifies otherwise.
Example 2: After a long search, Larry enters into a lease with Tina. Larry thinks Tina is the perfect tenant and wants to lock her in long term. Larry drafts a lease requiring Tina to give 60 days’ notice if Tina intends not to renew the lease. 30 days before the lease expires, Larry informs Tina, orally, that he wants her to vacate since he intends to move into the property and occupy it. Tina refuses to vacate and informs Larry that if Larry wanted to terminate the tenancy, he is required to provide 60 days’ notice terminating the lease. Even though the lease only requires Tina to give notice, the law automatically requires that Larry give 60 days’ notice also and Tina’s lease is now automatically renewed for another year.
Example 2: Tina the Tenant pays Larry the Landlord first month, last month, and security deposit at the beginning of the 12-month lease term. In month twelve Larry accepts rent from Tina and then finds out Tina is becoming a nuisance to her neighbors and wants to terminate her tenancy. He checks the lease and there are no requirements for notice to be given or a specific termination period. He prepares a Notice of Non-Renewal to serve on her. Is Larry going about it the right way? No. Because Larry was in possession of a last month of rent and accepted rent in the twelfth month he likely created a month to month tenancy by that acceptance. Therefore he should serve Tina with a 15 Day Notice Terminating her month to month tenancy with a move out date on the final day of the 13th month.