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.
