Can a tenant provide a 30 day notice on the 7th of the month or do I have to give notice on the first of the month

Asked about 6 years ago - San Francisco, CA

can I as a tenant give 30 days notice to vacate my apartment on the 7th of the month- or do you have to give notice legally on the first of the month

Additional information

I provided my landlord with a written notice on December 5th that I would be out by Jan 1st and paid for 30 full days which went to the 3rd of Jan. He is telling me that in Wisconsin a month to month has to be given on the 1st of the month and it's not just a 30 day notice. Can he keep my security deposit and the 3 extra days that I paid for January then?

Attorney answers (6)

  1. Elizabeth T McLoughlin Sanders

    Contributor Level 7

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    Answered . You may give 30 day notice from the 7th of the month and you will owe the landlord prorated rent for the following month. However, this works only if you are on a month to month rental. If you are on a lease, you will owe the full amount of the lease unless the landlord is able to mitigate his damages (i.e. get a replacement tenant).

  2. Peter David Brazil

    Contributor Level 2

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    Answered . Many of the answers provided here are correct and a few, while not correct regarding California law, cite general valid contract/landlord-tenant law.

    The applicable statue has been accurately cited as California Civil Code § 1946. The specific part of § 1946 that governs this specific question is as follows:

    "as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days' written notice thereof at any time and the rent shall be due and payable to and including the date of termination."

    Note that this passage contemplates rent being "due and payable to and including the date of termination". Additionally, § 1946 does not state that the notice has to be given on the 1st of the month or 30 days prior to the end of the month. While some in this thread have cited the sound contract theory, that a month-to-month tenancy is essentially a "mini lease" that is renewed at the start of each month, 1946 appears to preempt this notion statutorily. There is no California case law, that I am aware of, that attempts to interpret § 1946 in the context of the renewable month-to-month tenancy (i.e., "mini lease") or attempts to hold that any notice that does not complete its 30 day period before the start of a new "mini lease" period obligates the tenant for the remainder of the month. Additionally, if this were so then the tenant would have the right to possession for the remainder of the month, since he paid for it, in contradiction of the 30 day notice. Additionally, acceptance of any funds representing rent outside the 30 day notice period acts as a cancellation of the 30 Day notice and requires the parties to re-notice the other party in order to avoid reoccurring monthly obligation (i.e., "mini lease")

    The following is the complete language to § 1946

    § 1946. Notice required to terminate tenancy

    A hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in Section 1945, at the end of the term implied by law unless one of the parties gives written notice to the other of his intention to terminate the same, at least as long before the expiration thereof as the term of the hiring itself, not exceeding 30 days; provided, however, that as to tenancies from month to month either of the parties may terminate the same by giving at least 30 days' written notice thereof at any time and the rent shall be due and payable to and including the date of termination. It shall be competent for the parties to provide by an agreement at the time such tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof. The notice herein required shall be given in the manner prescribed in Section 1162 of the Code of Civil Procedure or by sending a copy by certified or registered mail addressed to the other party. In addition, the lessee may give such notice by sending a copy by certified or registered mail addressed to the agent of the lessor to whom the lessee has paid the rent for the month prior to the date of such notice or by delivering a copy to the agent personally.

    Finally, I would add that constructive submissions are the purpose of this site and name calling or insults to not help or promote it's goals.

    DISCLAIMER: This answer is provided for informational purposes only and does not constitute legal advice. Actual legal advice can only be provided in an office consultation by an attorney licensed in your jurisdiction, with experience in the area of law pertaining to your matter.

  3. Michael John Percy

    Contributor Level 8

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    Answered . Under California law, you must give notice of termination of your month-to-month lease a full 30 days before the beginning of the next month's rental period. Under California law, on a month-to-month rental agreement, if you occupy the apartment during any part of a month, you are assumed to have renewed your rental agreement for the entire month. Since you have already stayed in your unit through the 7th of the current month, you have already renewed your month-to-month lease for this month. Your notice of termination therefore applies to an upcoming month's lease. Since the 30 days notice would have you stay at least through the 7th of the next month, your notice of termination cannot apply to that next month either; it can only apply to cancellation of the month that follows. So, if you are giving notice on January 7th, it cannot apply to February's rental, but it does cancel the March rental agreement. See California Civil Code Section 1946.

  4. David Carl Beyersdorf

    Contributor Level 13

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    Answered . 30 days is 30 days. You do not need to actually give the notice on the first, but you need to give AT LEAST 30 days notice. That is, it can be more, but it can't be less. Practically speaking, the landlord may or may not seek to get the additional month's rent our of you. Good Luck.

    David C. Beyersdorf

  5. William Robert Falcone

    Pro

    Contributor Level 13

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    Answered . I am an attorney practicing in New York and Colorado. I can give you some guidance, but you will likely need to speak to a lawyer practicing in CA to confirm my response. Generally, if you do not have a written lease you are considered a month to month tenant. Some written leasees are also drafted as month to month tenancies. Month to month leases are basically a series of mini one month leases that are automatically renewed unless one party gives notice to the other of their intention and desire not to renew the lease. It is based on full calandar month leases; not divided into partial months (unless specifically agreed to by the parties). Therefore, what really matters is what month you give notice in, not what day of the month you do so. Either landlord or tenant may provide a written notice to the other party that indictaes that they do not wish to renew the lease at the end of the month following the month in which notice is being given. In other words, if you give notice any time in October, even on October 1st, you still would have been responsible for full rent in November, but not for December. That is because the notice would be less than one month before the start of the next mini one month lease. Your notice would have had to be given within the month of September (typically at the end of the month), to avoid responsibility for all of November. So the term "30 day notice" is a little misleading. You really need to give notice before the start of the next 1 month term, in order to prevent the automatic 1 month renewal for the following month. Of course it works both ways. (Notice by a tenant on the 7th does not mean the tenant is free of the rental obligation as of the 7th of the next month. He is responsible for the full next month. Likewise, notice from the Landlord on the 7th would not require the tenant to move out before the 7th of the next month. You get the whole next month since the mini leases are for full months not patial ones.) Therefore, the only time a "30 day notice" is a true "30 day" notice is when it is given on the last day of a month.

    You should confirm that this is the law in CA with a local lawyer, and while you are at it, seek advise or assistance in writing the notice letter and the proper method of delivery of it to your landlord. Once you are educated on the CA law, consider this. If you don't pay November rent, he won't have time to evict you before the November 7th when you plan to move out. The landlord also likely has the obligation in CA to mitigate his damages by attempting to find a replacement tenant once you move out. If he finds someone in November, you only have to pay any shortfall to the landlord for that month. He can not collect doulbe rent for November. You could also sublet the apartment or assist the landlord in finding a replacement tenant to reduce your liability. Armed with this information, you may want to give the notice today that says you are moving on the 7th, and then seek to negotiate a resolution with the landlord regarding November's rent. Maybe he will accept less than a full month's rent, or maybe you can work out some resolution which both of you can live with. That negotiation can take place now, or after you have moved out, and you see if he find's a replacement tenant. Typically, you may have an advantage in negotiating once you move out, since he is the one looking for the November payment, and he no longer has the threat of an eviction over your head. At that point, he may also take less as a practical matter.

    I hope this detailed response was helpful and did not confuse you to much. I tried to explain the legal and practical side to you, so that you could make a good desicion for yourself . If I gave you the short answer, you would not have understood it, and would not be in the best position to negotiate with the landlord. In fact, it is likely that you now know more than your landlord. Best of luck to you.

  6. Linda Kaye Frieder

    Contributor Level 7

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    Lawyers agree

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    Answered . Generally, notices are to be given on or before the first of the month. Unless the landlord can rent out your your unit mid-month, you may be on the hook.

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