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posted: 8/15/2010 12:01 AM

Month-to-month leases can be terminated

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Q. I have a tenant who signed a one-year lease that ended in June. He sent me a check for July for the same amount as the prior year's rent and I cashed the check. He has now sent me a check for August but I have not cashed the check because I have decided I want him out. He causes problems for my other tenants and I am always chasing him for the rent.

When I told him I wanted him out by the end of August, he told me that because I cashed the July check, he now has a lease for another year. Is this true? I don't know if I can deal with this guy for another year.

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A. It would be my opinion that when you cashed the July check, you created a month-to-month tenancy that can be terminated by either party upon 30 days notice. The tenancy can only be terminated at the end of a month, so, by serving a Notice of Termination before Aug. 30, you can terminate the tenancy on Sept. 30.

If you had written me this letter on July 2 and told me you had not yet cashed the July check, I would have advised you that if you wanted him out and he would not cooperate, don't cash the check and immediately file an eviction lawsuit in the county where the property is located. By cashing the July check, however, you have created a new tenancy.

A judgment for foreclosure was entered against the landlord of the building I live in. The court paper says "Judgment of Foreclosure Entered (Case is Pending)". What does this mean? I looked all over the Internet and couldn't find an answer.

A. Without reviewing the notice and without knowing whether or not the notice was sent directly to you, I would suspect this may be some party's attempt to comply with one of the state or federal notice requirements concerning tenants in foreclosure actions.

With the great number of foreclosures occurring in the real estate market, it is not surprising that innocent tenants are being caught up in the problem. Tenants are routinely threatened with eviction by banks, lending institutions and other foreclosure sale purchasers. Tenants leasing property subject to foreclosure proceedings should be aware of the The Protecting Tenants at Foreclosure Act of 2009. The provisions of the Act became effective on May 20, 2009, and will expire on Dec. 31, 2012. The act applies to virtually all residential property.

Under this law, the party succeeding the interest of the original owner (usually the original owner's lender) must provide the tenant with a notice to vacate at least 90 days before legal action may be commenced. In addition, tenants must be permitted to reside in the property for the full duration of their lease, with two exceptions: 1) When the property is sold to a party who will occupy the property as their primary residence; and 2) When there is no written lease. In both the above exceptions, the tenant is still entitled to 90 days notice before eviction proceedings may be commenced.

It is important for tenants involved in this situation to continue to timely pay their rent, though it is often confusing where rent payments should be sent. As a general rule, continue to pay the landlord unless instructed otherwise by the court. Tenants should make all payments by check or in some other manner where the payment can be documented.

There are other issues that may be involved. I would suggest speaking to a real estate attorney, especially if you are served by the sheriff in the foreclosure action.

• Send your questions to attorney Tom Resnick, 345 N. Quentin Road, Palatine, IL 60067, by e-mail to tdr100@hotmail.com or call (847) 359-8983.

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