Giving notice to vacate: Is e-mail good enough?

  • Article by: KELLY KLEIN
  • Updated: August 16, 2014 - 2:00 PM

Q: We have been renting a house for the past four years. We signed a lease in July 2010 for one year with a provision that it would be automatically renewed for a second year if we did not give written notice. At the time, we were required to pay first month’s rent, last month’s rent and one month’s rent as deposit.

In 2012, after living there for two years, no new lease was offered or signed. Our rent was increased, and we accepted the increase that year and again in 2013. We have paid rent on the first of every month for the past four years. On July 31, 2014, I sent an e-mail to our landlord stating we would move out at the end of August. I asked him to use the rent we paid at the beginning for “last month’s rent,” and also gave him a $300 check to cover the rent increases over the years. He responded to our e-mail on Aug. 1, stating that notice has to be sent by U.S. mail and not e-mail. The lease agreement signed at the beginning of our tenancy had mentioned notices should be sent by U.S. mail and e-mail. Over the past four years, he has frequently communicated by e-mail and has sent us several notices, such as our rent increases, by U.S. mail and e-mail.

Our landlord came to us on Aug. 2, and offered a deal whereby we pay him an extra $1,800 to move out at the end of August. He is now sending us e-mails threatening to evict us. My search on the Internet indicates that e-mail is an acceptable way of communication. My family is now very concerned. We have been model tenants for four years and now fear eviction.

Is the landlord right when he states that we had to provide notice by U.S. mail and e-mail?

A: As I understand it, your landlord now wants to charge you rent for September, claiming that the notice you gave him via e-mail on July 31 is ineffective because you did not send notice by U.S. mail. Unfortunately, there is no case law that exactly covers this issue. Minnesota law requires that a notice to vacate be in writing. An e-mail meets that definition. However, your now-expired lease requires that the notice be sent by both U.S. mail and e-mail. There are many cases regarding notice, and most of them require that the notice strictly meet the lease requirements, i.e., be delivered on time and name the correct people. On the other hand, the purpose of the notice is to notify the other party that the lease is terminating. Your landlord obviously got your e-mail in a timely manner because he responded the next day, and is now trying to collect an additional month’s rent. In addition, there is an issue as to whether the lease really controls your situation. The lease was signed in 2010, and then “automatically” renewed for an additional year. Under Minnesota law, in order for a lease to renew for a period longer than two months, the landlord has to jump through several hoops to meet the statute’s requirements. It does not sound as though your landlord sent you the required notices to renew the lease, and therefore you have been on a month-to-month lease for the past three years. Some leases have provisions stating that, if the lease terminates, then it becomes a month-to-month lease, and all the terms and conditions continue to apply. These are called carry-over provisions. If your lease contains such a provision, then the notice provision in the lease may apply. If not, then it definitely does not apply.

You cannot be forced to move before Aug. 31 for giving improper notice. Your landlord could be arguing that you failed to pay rent for August, as this is technically not your “last month,” and that he can pursue an eviction for that reason. Once again, this is a very technical argument, and I can’t see a court evicting you for nonpayment when the landlord has the rent.

Minnesota law prohibits a landlord from accepting a partial payment of rent before the hearing unless both parties agree in writing that the acceptance of the partial payment does not waive the landlord’s right to proceed. If your landlord has cashed the $300 check (holding the check and not returning it right away may be enough), then he has waived his right to pursue eviction for nonpayment for the month of August. So, unless the landlord has returned the $300 check to you, he cannot pursue an eviction for August, unless there is some other lease violation.

In the end, you have a landlord who is taking advantage of the situation to get a little more rent out of you. Unfortunately, you will need to use him as a reference if you are renting in the future, and this sounds like the kind of landlord who may allege a lot of damage to the unit so that he doesn’t have to return your security deposit. You need to try to work with him so that he will be a good reference and not try to charge you a ton of money.

You should think about contacting an attorney or a local tenants rights organization, such as HOMELine at 612-728-5767, to communicate with your landlord on your behalf. If you decide to handle the situation yourself, make sure to get any agreement with your landlord in writing. Also, make sure to include in this written agreement the type of reference your landlord will provide and how the damages, if any, are to be handled so that there are no surprises down the road.

Kelly Klein is a Minneapolis attorney. Participation in this column does not create an attorney/client relationship with Klein. Do not rely on advice in this column for legal opinions. Consult an attorney regarding your particular issues. E-mail renting questions to kklein@kleinpa.com, or write to Kelly Klein c/o Star Tribune, 425 Portland Av. S., Minneapolis, MN 55488. Information provided by readers is not confidential.

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