As the name implies, a month-to-month tenancy is an arrangement where the tenant is permitted to occupy the leased premises on a continuing monthly basis until the lease is terminated. This occupancy arrangement can be created by a written lease. It can also be created by operation of law when no written lease exists, or when a written lease exists but does not define a term or define what happens at the end of the term (in which case, a month-to-month tenancy is created going forward).
Usually, a written lease that explicitly creates a month-to-month tenancy will specify that the landlord/tenant must provide the other party ____ days advance written notice to terminate the tenancy. However, if the lease does not specify how the month-to-month tenancy is to be terminated, or if there is no written lease, then the Virginia Code will control the termination of the tenancy.
The Virginia Code provides that the landlord or the tenant may terminate a month-to-month tenancy by serving a written notice on the other at least 30 days prior to the next rent due date (see Virginia Code § 55-222 and § 55-248.37). Therefore, contrary to popular belief, a month-to-month tenancy does not always terminate 30 days after the date on which the landlord provides written notice of termination to the tenant. If rent is due on the first day of the month (as is the case for most tenancies), then the tenancy will always terminate at the end of a calendar month (not 30 days from the date of the notice).
To illustrate: If there is no written provision to the contrary and a 30 day notice is served on June 5, then the month-to-month tenancy will not terminate until the end of July. This is due to the fact that 30 days after June 5 is July 5, and the next rent installment due after July 5 is due on August 1. However, if the 30 day notice is provided on May 31, then the tenancy will terminate at the end of June since 30 days after May 31 is June 30 and there is a rent installment due on July 1. As this example shows, if a landlord wants the tenancy to end at the end of a particular month, then the landlord must provide the 30 day notice in the month before that month. And, if the landlord wants a tenancy to end at the end of February, the landlord must provide the notice by January 29 (or January 30 in a leap year). The exception is if the final lease month has 31 days and the notice is provided on the first day of the month.
Things get more interesting when rent is due on a day other than the first day of the month. For instance, if rent is due on the 5th day of the month, and a notice to terminate the tenancy is provided more than 30 days before the 5th, but less than 30 days before the 1st, when does the month-to-month tenancy terminate? This question is open to interpretation under the Virginia Code. Most likely, the tenancy terminates 30 days after the notice is provided. However, this interpretation conflicts with the generally accepted concept of a month-to-month tenancy, since the tenancy does not terminate at the end of a calendar month. In our experience, some Virginia judges will adhere to the generally accepted concept of a month-to-month tenancy, and rule that unless a notice is provided at least 30 days before the last day of a calendar month, the lease will not terminate until the end of the following calendar month. In other words, judicial interpretation might find that the tenancy cannot end mid-month.
In those cases where the lease defines the month-to-month tenancy and specifies the notice period for terminating the tenancy, the lease will control.
If you are the landlord and want to end a month-to-month tenancy, you should provide the termination notice before the end of the prior month to avoid a complex calculation and possible extension of an unwanted tenancy.