Does Defective Notice Undermine an Otherwise Valid Eviction Case?

When you set out to evict a tenant in default, delivering the actual notice may seem like a minor affair. But failing to follow the exact notice methods and deadlines set out in the lease can undermine your eviction suit. This is true even if the notice you do provide is loud and clear.

The reason stems from an old legal saying: “Equity abhors forfeiture of valuable leasehold interests.” Accordingly, in most states, the fact that the tenant is in default isn’t enough to justify ending a tenancy; the landlord must also strictly comply with all lease notice requirements in declaring the tenant in default. In contrast to “strict compliance,” a few states follow a “substantial compliance” approach that allows landlords to cut corners on notification methods as long as the tenant gets the message that the landlord believes it’s in default and is terminating the tenancy. The cases below illustrate both approaches.

Strict Compliance

“Lessor… may give written notice to Lessee specifying the occurrence giving rise to such Event of Default … and stating that this Agreement and terms hereby demised shall expire and terminate on the date specified in such notice, which shall be at least twenty (20) days after the giving of such notice.” [Emphasis added.]

Facts: A restaurant tenant fell behind on rent. The landlord sent the tenant a notice declaring it in default under the lease but not specifying the violation or date of termination. Then it changed the locks. The tenant didn’t deny the allegation but claimed the default notice was defective. The court agreed and found the eviction unlawful. The landlord appealed.

Decision: The Supreme Court of Vermont tossed the landlord’s appeal.  

Explanation: “Our law is clear on the necessity of strict compliance with terms in a lease in order to effectuate an eviction,” the Court reasoned. The default notice in this case didn’t comply with the lease because:

• It didn’t “specify the occurrence” giving rise to the default; and
• It didn’t state the date of termination.

“When a lease expresses an agreement with regard to notice of termination, the time, mode and manner of such notice must conform to the agreement,” the Court concluded [Vt. Small Bus. Dev. Corp. v. Fifth Son Corp.: 2013 VT 7, 193 Vt. 185, 67 A.3d 241, 2013 Vt. LEXIS 6, 2013 WL 278259].

Substantial Compliance

“This Lease shall remain in full force and effect for the full term of six (6) years, commencing on the 4th day of September 1992 and for successive additional terms of six (6) years thereafter, unless terminated by either the Lessor or Lessee by written notice sent registered mail, at least ninety (90) days but not more than one hundred twenty (120) days prior to the expiration of such terms as shall then be in effect.” [Emphasis added.]

Facts: In 2003, a laundromat tenant violated its lease by installing new washers and dryers and raising the vend price without the landlord’s permission. In March 2004, the landlord sent the tenant notice of termination. The lease was due to expire in September 2004. So, the tenant claimed the notice was defective because the landlord didn’t provide it during the required 90- to 120-day window. The court sided with the landlord, and the tenant appealed.

Decision: The Ohio Court of Appeals affirmed the lower court’s ruling.

Explanation: The notice should have been sent in May or June and was “technically premature.” However, the court continued, courts in Ohio “have applied a substantial compliance standard or have otherwise excused technical defects in cases involving notices of termination.” The point of requiring notice is “not to be hypertechnical but, instead, to create certainty.” In this case, there was certainty—the tenant was on actual notice for several months of the landlord’s intent not to renew the lease. So, requiring the landlord to provide another notice just to fit in the 90- to 120-day window would have been “hypertechnical” and pointless [Hil-Roc Condo. Unit Owners Assoc. v. HWC Realty, Inc.: 2006-Ohio-4770, 2006 Ohio App. LEXIS 4701.]

Know the Laws of Your State

When it comes to providing notice of lease termination, most states follow a strict compliance standard. Here’s the breakdown among states where courts have addressed the question.

Strict v. Substantial Compliance with Lease Termination Notice Provisions