What if you have a new lease but old tenant won't move?

Question

My wife posed this question to me and I wonder if anyone has ever had this experience? Say your current tenant is given notice to leave and you show your property in the meantime and find a new tenant to move in before they are gone. The date comes that the old tenant has to leave, but they don't. The new tenant is supposed to move in a few days or a week later. What do you do with the new tenant assuming they have already signed a lease?

Jon Holdman · Answer

Don't sign the lease until they actually move in!  When I sign a lease, money and keys change hands and the place is theirs.

I would make it clear up front to the new tenant that the old one is expected to move out on a certain day.  But that there's always a chance something could go wrong and my ability to get them into the place is limited by the old one moving out.  I have taken a hold deposit in a situation like this where the new tenant was OK with moving in as soon as the old tenant left.  Fortunately the old tenant was only one day late getting out and I was able to get the new one in the next day.  If the situation had blown up and an eviction proved necessary, I'd have give the new one the option of waiting or getting their deposit back.

Jon Holdman · Answer

I can understand the desire to lock in a tenant.  Use a "deposit to hold" agreement for that, not the lease.    When I sign a lease I expect to receive one full months rent and the full deposit in cash or money order.  And I expect to hand over the keys.  You're sitting yourself up for any number of issues if you sign a lease before can deliver possession of the property.

Matt Devincenzo · Answer

@Erik Wilson I don't think @Greg M. comment was rude or uncalled for, just matter of fact that he doesn't understand why you'd be more concerned with your old vs new tenant. Based on the responses you received from both your tenants so far, I'd predict that you're about to find out your new tenant can be less than easy to deal with...just my perspective.

As far as your new tenant 'hitting the roof' I'd simply let him know you were just asking a question to attempt to resolve the issue, not implying that you'd unilaterally change your lease terms on him. The old tenant can get a storage unit and stay in a hotel or M2M Airbnb if they need. FYI you're under no obligation to either new or old tenant to house them in the event that this doesn't work out for some reason. So until someone is actually in the wrong, just proceed as planned...and clean up the mess as it occurs.

Erik Wilson · Answer

As far as new customer, old customer, there is more to it than you are aware of, so your comment is uncalled for.

Greg M. · Answer

That clause is probably only going to protect you if you actually try to remove the current tenant or the situation were outside your control (unknown major repairs are going to take months). Charging the current tenant $100 a day and filing for eviction will help protect you. Accepting either the prior/current rent amount and allowing the extended stay will not and you will likely be liable to the new tenant.

FYI, the new tenant could potentially go after your existing tenant for their losses.

BTW, your great relationship with your tenant is going to end when they move out. Why you would want to help an ex-customer over your new customer is beyond me.

Erik Wilson · Answer

So I actually do have a Non-Delivery of Possession clause that states that if landlord is unable to deliver possession the lease automatically terminates.

Tyler Brown · Answer

Since he already signed the lease, you've entered into a legally binding agreement to provide him housing starting on whatever date.  He could indeed sue you for costs incurred by him for your inability to hold up your end of the bargin, such as movers, a storage unit, a hotel until they find a new place to live, etc...  Most people probably aren't going to do that, but it is indeed possible.

In the future, don't sign the lease until the first day when they're moving in.

People threaten to sue all the time, few actually do.  If you're actually served, speak with an attorney to go over your options, but you likely do have at least some liability here.

Erik Wilson · Answer

I have a similar issue.  I have my current tenant, who gave me proper notice with the agreement that he would pay $100 per day if he stayed longer that the 30 notice states.  He was in escrow on a new property and the deal fell through.  I has asked if I would let him stay for another mother or two.  I did sign a new lease in the meantime and new tenant is scheduled to take occupancy in a few days.  I asked if new tenant would be willing to allow old tenant to stay for a month or two and he hit the roof.  Threatened to sue me for breach of contract.

My old tenant and I have a great tenant/landlord relationship and I really want to help him.  What should I do?

Angie Fernandez · Answer

No, the lease does not have that clause.

"wait - until unit is ready and be prorated for the delay" - we're willing to do that but that's not the problem.  The problem is the existing tenants now wants to renew and corporate is accommodating them instead of their contract with us.  They're saying for us to go to another unit instead of evicting them. However we do not like the units available.  We want corporate to honor our lease and have the current tenants to move to another unit instead.

What if you have a new lease but old tenant won't move?

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