Why this matters: A tenant uses a notice to vacate when the tenant under a month-to-month tenancy intends to vacate the premises. Further, a tenant uses a notice to landlord to surrender personal property when the tenant left personal property behind after vacating and requests the landlord return the personal property.
The periodic tenancy
A periodic tenancy automatically continues for successive equivalent periods of time, such as a week or a month. The length of each successive period of time is determined by the interval between scheduled rental payments. A periodic tenancy is automatically renewed when the landlord accepts rent.
Examples of periodic payment intervals include:
- annual rental payments, indicating a year-to-year tenancy;
- monthly rental payments, indicating a month-to-month tenancy; and
- weekly rental payments, indicating a week-to-week tenancy.
A periodic tenancy is created when a landlord and tenant enter into a rental agreement. A rental agreement sets the terms of a periodic tenancy, including the rent to be paid, when rent is payable, who will pay which utilities, and the maintenance responsibilities between the landlord and tenant. [See RPI Form 551]
A periodic tenancy also arises due to occupancy under a defective lease agreement. A tenant who enters into possession under an unenforceable lease agreement (e.g., oral or unsigned) and pays rent in monthly intervals that the landlord accepts is a month-to-month tenant.
A periodic tenancy continues until terminated by service of a notice to vacate. This makes a periodic tenancy flexible, since it allows either the landlord or the tenant to terminate a month-to-month tenancy by giving the other the appropriate notice to vacate. [Kingston v. Colburn (1956) 139 CA2d 623; Calif. Civil Code §1946; See RPI Form 569 and 572]
To terminate a periodic tenancy, the notice period needs to be at least as long as the interval between scheduled rental payments but need not exceed 30 days. However, an exception exists when a residential tenant has occupied the property for more than 12 months, which requires a 60-day notice to terminate the periodic tenancy. [CC §1946.1; See RPI Form 569-1]
Related video:
Read more about the periodic tenancy.
Tenant’s intent to vacate
A tenant, residential or commercial, who intends to vacate and avoid further liability under a month-to-month rental agreement, serves the landlord with a 30-day advance notice the tenant is vacating.
The notice to vacate may be in the form of a letter personally delivered to the landlord or their agent or sent by certified or registered mail. [CC §1946]
The tenant and landlord are best served by the landlord handing the tenant a blank 30-day notice to vacate form when entering into a rental agreement, but not when entering into a lease agreement. [See RPI Form 572]
The tenant will then have the correct paperwork to complete and deliver documentation to the landlord or property manager. Use of a form lends certainty to the tenant’s understanding of a critical event. [See RPI Form 572]
Related video:
Read more about tenancies.
Tenant acknowledgement
A 30-day notice used by a tenant to advise the landlord they intend to vacate acknowledges:
- the tenancy is terminated on expiration of 30 days after service of the notice on the landlord or the manager;
- the tenant intends to pay pro rata rent;
- the amount of the security deposit;
- the tenant’s right to request a joint pre-expiration inspection and receive an itemized statement of maintenance and cleaning deficiencies for any potential deductions from the security deposit;
- a security deposit statement and refund based on any deductions for cleaning and repairs on a final review of the premises by the landlord or property manager; and
- the landlord’s right to show the premises to a prospective tenant on 24-hour notice.
When a tenant serves the landlord or property manager with a 30-day notice to vacate but fails to vacate the residence after expiration of the notice, they become a holdover tenant unlawfully in possession. The tenancy has been terminated by the tenant’s notice and with it the right to occupancy. The landlord may immediately file an unlawful detainer (UD) action to evict the tenant. No further notice to quit is required since the tenancy has already been terminated.
Related video:
Read more about a holdover tenant.
Service of the tenant’s notice to vacate
A tenant may serve their notice to vacate at any time during the month.
However, a commercial landlord and tenant may agree in a rental agreement that the 30-day notice to vacate may not be served during the last seven days of the month.
In contrast, service of a notice to vacate can occur at any time in a residential periodic tenancy. [CC §1946]
To be effective in commercial tenancies, the notice to vacate from a tenant or landlord needs to be served:
- in the same manner as a three-day notice (in person, by substitution or ultimately post and mail); or
- by certified or registered mail, methods of service not available for three-day notices to quit. [CC §1946]
The date of service is the date the notice is attempted in the following priorities:
- personally served;
- handed to a person of suitable age and discretion at either the residence of the tenant or the tenant’s place of business; or
- posted in a conspicuous place on the leased premises and mailed by certified or registered mail.
The minimum period within which the tenant is to vacate begins to run the day after the date of service, which is day one of the 30- or 60-day period to vacate. [CC §10]
When the day for expiration of the notice is a Saturday, Sunday or a federal holiday, the tenant is not required to vacate until the next business day. [Calif. Code of Civil Procedure §12]
Related article:
Analyzing the 30-day notice to vacate from tenant
A tenant uses the 30-Day Notice to Vacate — From Tenant published by Realty Publications, Inc. (RPI) when the tenant occupies the property under a month-to-month rental agreement or the occupancy is under an expired lease agreement and rent has been paid and the tenant is vacating the premises. It allows the tenant to notify the property manager or landlord the tenant will vacate within 30 days. [See RPI Form 572]
The 30-Day Notice to Vacate — From Tenant contains:
- date served, to establish the tenant is to vacate within 30 days after the date given;
- landlord’s name;
- Facts, including the:
- date of the rental agreement or expired lease agreement granting the tenancy;
- tenant’s identity;
- landlord’s identity; and
- real estate involved [See RPI Form 572 §1];
- who the tenant will return the leased premises to within 30 days of service of the notice [See RPI Form 572 §2];
- a statement verifying the notice is intended as a 30-day notice to terminate the tenant’s month-to-month tenancy [See RPI Form 572 §3];
- the tenant’s understanding that:
- they owe prorated daily rent for any days in the 30-day period they have not prepaid rent;
- residential tenants have a right to request and be present for an inspection of the premises prior to vacating to become aware of deficiencies needing correction to avoid a deduction from the tenant’s security deposit;
- within 21 days after the tenant vacates, the landlord furnishes a written statement and explanation of any deductions from the deposit, and a refund of the remaining amount;
- the landlord may deduct from the security deposit only those amounts necessary to:
- reimburse for tenant defaults in rental payments;
- repair damages to the premises caused by the tenant, minus ordinary wear and tear;
- clean the premises; and
- reimburse for loss, damage or excessive wear and tear on furnishings; and
- the landlord may show the premises to prospective tenants during normal business hours by first giving the tenant written notice at least 24 hours in advance of entry [See RPI Form 572 §4];
- the tenant’s reason for the termination of the month-to-month rental agreement [See RPI Form 572 §5];
- whether the tenant served the notice personally or by certified or registered mail [See RPI Form 572 §6]; and
- the tenant’s name, signature and date, as well as forwarding address and contact information, and the date the landlord received the notice from the tenant. [See RPI Form 572]
Related article:
Returning personal property after a tenant vacates
Two separate statutory procedures exist for the return of personal property left on the premises by a tenant. One is initiated by the landlord or property manager, the other by the tenant.
Residential and commercial landlords and their property managers may initiate (and control) the process of returning or disposing of the tenant’s personal property. The notice of right to reclaim personal property prepared by the property manager needs to be personally served or mailed to the tenant who vacated and left the personal property. The notice advises the tenant of their right to reclaim or abandon the personal property. This process is called the landlord-initiated disposition procedure. [See RPI Form 581 and 584]
The other procedure allows a residential tenant acting within 18 days of vacating the premises to initiate a return of personal property they left behind. By handing or mailing to the landlord or property manager a notice to landlord to surrender personal property, the tenant may reclaim personal items left behind. This is called the tenant-initiated recovery procedure. [CC §1965; See RPI Form 582]
The property manager is not required to use the landlord-initiated disposition procedure when the tenant leaves personal property behind. [CC §1981]
However, a property manager who sells or disposes of a tenant’s personal property by other than these two procedures can be challenged for their handling of the belongings.
For example, a tenant claims their personal property was left behind inadvertently, not abandoned. The property manager is not entitled to sell or dispose of the tenant’s personal property unless the property manager first establishes the tenant’s actual intent is not to reclaim the personal property, but to abandon it.
The preferred method for establishing the tenant’s intent to abandon the property left behind is the landlord-initiated disposition procedure. The tenant is notified of their right to reclaim the property they left behind and their need to respond to avoid its disposal. [See RPI Form 581 and 584]
Related article:
Residential tenant-initiated recovery
Only a residential tenant may deliver to the landlord or the landlord’s agent a written request for the return of personal property left in the vacated unit, called a notice to landlord to surrender personal property. [See RPI Form 582]
The residential tenant’s request for the landlord’s release of belongings the tenant left behind needs to:
- be written;
- be mailed or handed to the landlord or property manager within 18 days after they vacate the unit;
- include the tenant’s current mailing address;
- contain an identifiable description of the personal property left behind;
- be received by the landlord or property manager while they are in control or possession of the personal property; and
- be received by the landlord or property manager before they have mailed a notice of right to reclaim personal property, commencing the landlord-initiated disposition procedure. [CC §1965(a)]
Within five days of receiving the tenant’s notice to surrender personal property, the property manager mails, emails or hands the tenant a written demand for reasonable removal and storage costs. This written demand itemizes the costs for removal and storage to be paid before the tenant can remove the property. [CC §1965(a)(3); See RPI Form 582-1]
The tenant or other owner of the personal property is not required to pay any storage costs when:
- their personal property remained on the rented premises; and
- they reclaim their personal property within two days of vacating the premises.
Once the tenant has received notice, it is then the tenant’s responsibility to contact the property manager and arrange a mutually agreeable date, time and location for the tenant to claim and remove their personal property. However, the tenant or the tenant’s agent needs to retrieve the personal belongings within 72 hours after the tenant pays storage charges demanded by the property manager. [CC §1965(a)(4)]
After a tenant mails the property manager a request to surrender personal property, the property manager might receive another request for the same items from the tenant’s roommate, a secured creditor or other person with an interest in the property.
The first request received by the property manager controls the return of the property left behind. [CC §1965(d)]
The landlord is not obligated to the roommate or anyone else who makes a later request for the same personal belongings.
Related video:
Which process controls?
The tenant-initiated process for residential rentals does not apply when the property manager first mails, emails or personally delivers the notice to the tenant before the landlord or property manager receives the tenant’s notice to surrender personal property. [CC §1965(c)]
But what happens when the property manager’s notice to reclaim property and the tenant’s request to surrender the property pass in the mail?
The landlord-initiated process begins the moment the property manager deposits the notice of the tenant’s right to reclaim property in the mail (first-class, postage prepaid). The tenant-initiated process does not begin until the property manager personally receives the tenant’s request. [CC §1983]
The property manager who neglects to mail the notice before actually receiving a tenant’s request is required to respond to the tenant’s request. Under abandonment rules, the landlord no longer controls disposition.
Conversely, when the property manager can show they deposited either the notice of abandonment (which covers both the rented real property and the tenant’s personal property) or the notice to reclaim personal property in the mail before they actually received the tenant’s notice to surrender, the tenant abides by the landlord-initiated disposition procedure.
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Letter to the Editor: What happens when a rental payment arrives late through the mail?
Residential landlord violations
Consider a residential tenant who has vacated and timely hands the property manager a notice to surrender personal items they left behind.
In turn, the property manager makes a demand on the tenant to pay removal and storage costs. The tenant promptly pays the removal and storage costs.
When the property manager fails to hand over the items within 72 hours after the tenant (or tenant agent) pays storage and removal fees, the landlord is liable for:
- damages for the value of the personal items;
- $250 for each violation; and
- attorney fees. [CC §1965(e)]
This tenant-initiated procedure is entirely avoided when the property manager merely sends by first-class mail either the notice of abandonment (both real estate and personal property) or a notice to reclaim personal property before they receive the tenant’s notice to surrender the property. The notice to reclaim personal property may also be emailed to the tenant. [See RPI Form 581 and 584]
Related article:
Form-of-the-Week: Abandonment and Right to Reclaim Personal Property — Forms 581, 583 and 584
Analyzing the notice to landlord to surrender personal property
A tenant uses the Notice to Landlord to Surrender Personal Property — For Use by Residential Tenants Only published by RPI when they have left personal property on the premises and the landlord has not begun the disposition process. The form allows the tenant to initiate a return of personal property they left behind within 18 days of vacating the premises and reclaim it within 72 hours after payment of removal and storage fees. [See RPI Form 582]
The Notice to Landlord to Surrender Personal Property contains:
- the date the tenant served the notice on the landlord;
- the landlord’s name;
- Facts, including the:
- date of the residential rental or lease agreement;
- tenant’s identity;
- landlord’s identity; and
- real estate involved [See RPI Form 582 §1];
- Notice confirming:
- within 18 days prior to mailing or handing the notice to the landlord, the tenant vacated and delivered possession of the premises to the landlord [See RPI Form 582 §2]; or
- the notice is a request for the landlord to surrender to the tenant personal property not owned by the landlord which was left on the vacated premises and described in the blank space provided [See RPI Form 582 §3];
- the tenant understands the:
- notice must be mailed within 18 days after the tenant vacated the premises;
- landlord or the landlord’s manager must have control or possession of the personal property at the time the landlord receives the notice;
- tenant will pay all reasonable costs incurred by the landlord for the removal and storage of the personal property as a condition for the release and return of the personal property;
- landlord will provide a written itemized demand for payment of reasonable removal and storage fees within five days of receipt of the notice unless the property is first returned. The demand for payment of removal and storage fees will be mailed to the address given in the notice or handed to the tenant personally; and
- tenant will claim and remove the personal property at a reasonable time mutually agreed upon by the landlord and tenant to occur within 72 hours after the tenant’s payment of reasonable removal and storage fees demanded by the landlord [See RPI Form 582 §4];
- Blank for the tenant to list a description of personal property to be reclaimed [See RPI Form 582 §5]; and
- Signature: the tenant signs and dates the form and provides their current mailing address and contact information. The landlord provides the date they received the notice. [See RPI Form 582]
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