Landlord and Tenant – Where Tenant Defaults Under A Lease

This assumes the tenant is under a lease and that the lease has not expired, or if it has expired there is a provision that the hold-over becomes a new term. In other words, these instructions would not apply where the tenant occupies the premises under a month to month or week to week tenancy.

1. FAILURE TO PAY RENT (OR OTHER MATERIAL BREACH): A 30 day notice of termination of the lease is required. The following is a suggested form:

NOTICE TO MOVE

For reason of material breach of the provisions of your lease with (name of apartment complex) by failing to pay rent, you are hereby given notice that your lease will terminate 30 days from the date of this letter. If you have not moved by that date, legal eviction proceedings will be commenced.

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The tenant has a right to cure the breach within 14 days by payment of the rent. (See appendix annexed for a copy of the statute, T.C.A. 66-28-505) You will observe that there are some additional provisions on the right to cure within the entire 30 days. This statute is new, and there are no decisions on the point. Therefore, there is a possibility of some questions on curing the default after the first 14 days but before the end of the 30 days.)

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2. SECOND DEFAULT WITHIN 6 MONTHS: If there is a 2nd material breach, failure to pay rent, within 6 months, only 14 days notice is required, and there is no right to cure. The following is a suggested form:

NOTICE OF LEASE TERMINATION

For reason of your second material breach of your lease with (name of apartment complex), your lease is being terminated 14 days from the date of this letter, and you are hereby given notice to move by that date. If you do not vacate the apartment by that date, you will be evicted.

3. Under either of the forgoing, the tenant would still owe the rent, and the landlord has a right to collect this rent. But acceptance of rent without reservation of rights waives the default.

A. Under the first letter, the first breach, the tenant has an absolute right to cure the default within 14 days of the notice.

B. After this 14 days under the first notice or at any time after the second notice (14 day notice), acceptance of rent “without reservation” waives the notice and default. Therefore, where rent is tendered after the initial 14 days or at any time after the 14 day notice, unless you desire to let the tenant remain, upon the rent receipt should be written, “with reservation of all rights”.

4. THREE DAYS NOTICE TO MOVE: Only 3 days written notice is required where there is some violence or a real and present danger. (It is rare for this to exist). See copy of statute in Appendix.

5. LATE CHARGES: By statute, Late Charges are limited TO 10% upon payments at least 5 days late.

6. SECURITY DEPOSIT: A security deposit must be deposited in a separate bank account used only for that purpose, and the tenant must be informed of the location of the account. But, the landlord is not required to furnish the account number. (T.C.A. 66-28-301). IF THIS IS NOT DONE, THE LANDLORD CANNOT RETAIN ANY PART OF THE DEPOSIT.

DAMAGES: Damages do not include normal wear and tear. At termination of the occupancy, the landlord must inspect the premises and compile a comprehensive list of any claimed damage and the estimated cost of repairs in order to make a deduction from the security deposit. The Landlord and Tenant Act provides that a copy of this list shall be furnished to the tenant, and the tenant is to have an opportunity to inspect the premises to ascertain the accuracy. The statute then provides that both shall sign the list, or the tenant has the right to state his objections on the list. If the tenant has moved or is otherwise inaccessible to the landlord, a copy of the list of damages and estimated cost must be mailed to the tenant at the last known mailing address. IF THIS IS NOT DONE, THE LANDLORD CANNOT RETAIN ANY PART OF THE DAMAGE DEPOSIT.

If the tenant vacates owing rent and doesn’t demand a return of the deposit, after 30 days the landlord can withdraw the deposit from the special account and apply same to the rent.

7. A landlord is prohibited from attempting to get a tenant to move by excluding or diminishing essential services.

8. Under Tennessee Law, a landlord does not have a lien on, a right to retain as security, the household goods and furnishings of the tenant. Such a lien is possible, but certain technical steps are required. See T.C.A. 66-28-509, Appendix. (It will be rare when a tenant who does not pay rent that he doesn’t also owe on his household goods. Therefore, this is a remedy which will seldom be of any benefit.)

9. Effective July 1, 1989, the landlord must advise the tenant in writing that the landlord is not responsible for, and will not provide, fire or casualty insurance for the tenant’s property.

APPENDIX

“T.C.A. 66-28-201(a) The landlord or his agent shall advise in writing that the landlord is not responsible for, and will not provide, fire or casualty insurance for the tenant’s personal property.

“T.C.A. 66-28-505. Noncompliance by tenant – Failure to pay rent. (a) Except as provided in this chapter, if there is a material noncompliance by the tenant with rental agreement or a noncompliance with Section 66-28-401 materially affecting health and safety, the landlord may deliver a written notice to the tenant specifying the acts and omissions constituting the breach and that the rental agreement will terminate upon a date not less than thirty (30) days after receipt of the notice. If the breach is not remedied in fourteen (14) days, the rental agreement shall terminate as provided in the notice subject to the following. If the breach is remediable by repairs or the payment of damages or otherwise and the tenant adequately remedies the breach prior to the date specified in the notice, the rental agreement will not terminate. If substantially the same act or omission which constituted a prior noncompliance of which notice was given recurs within six (6) months, the landlord may terminate the rental agreement upon at least fourteen (14) days’ written notice specifying the breach and the date of termination of the rental agreement.

(b) If rent is unpaid when due and the tenant fails to pay, written notice by the landlord of nonpayment is required unless otherwise specifically waived in a written rental agreement. The rental agreement is enforceable for collection of rent for the remaining term of the rental agreement.

(c)…”

T.C.A. 66-28-509. “Landlord Liens. – A contracted lien or security interest on behalf of the landlord in the tenant’s household goods shall not be enforceable unless perfected by a Uniform Commercial Code filing with the secretary of state. All other liens are hereby expressly prohibited under this chapter. The landlord shall be responsible for releasing lien at expiration or termination of the lease.”

T.C.A. 66-28-517. Termination by landlord for violation or threats to health, safety, or welfare of persons or property. – (a) A landlord may terminate a rental agreement within three (3) days from the date written notice is delivered to the tenant if the tenant or any other person on the premises with the tenant’s consent willfully or intentionally commits a violent act or behaves in a manner which constitutes or threatens to be a real and present danger to health, safety, or welfare of the life or property of other tenants or persons on the premises.

(b) The notice required by this section shall specifically detail the violation which has been committed and shall be affective only from the date of receipt of the notice by the tenant.

(c) Upon receipt of such written notice the tenant shall be entitled to immediate access to any court of competent jurisdiction for the purpose of obtaining a temporary or permanent injunction against such termination by the landlord.

(d) Nothing in this section shall be construed to allow a landlord to recover or take possession of the dwelling unit by action or otherwise including willful diminution of services to the tenant by interrupting or causing interruption of electric, gas or other essential service to the tenant except in the case of abandonment or surrender.

(e) If the landlord’s action in terminating the lease under this provision is willful and not in good faith, the tenant may in addition recover actual damages sustained by him plus reasonable attorney’s fees.

(f) The failure to bring an action for or to obtain an injunction may not be used as evidence in any action to recover possession of the dwelling unit.

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