TENANCY AT WILL NOTICES

Nevada law requires a five-day notice to the tenant, informing the tenant that the tenancy-at-will is ending and instructing the tenant to leave, followed by a second five-day notice that tells the tenant to leave because tenant's presence is now unlawful.  Learn what a "tenancy-at-will" is and how to prepare a notice properly. 

To evict a tenant-at-will, the tenant must be "served" with:

1. A Five-Day Notice to Quit for Tenancy-at-Will (NRS 40.251(1)(a)(3)) and, if the tenant does not move within the five-day notice period,
2. A Five-Day Notice to Quit for Unlawful Detainer (NRS 40.254).

Both notices must be "served" on the tenant by a constable, sheriff, licensed process server, or an agent of an attorney licensed in Nevada. A landlord cannot serve the notices himself/herself. (NRS 40.280(1).)

The Five-Day Notice to Quit for Tenancy-at-Will should tell the tenant:

1. That the landlord is terminating the tenancy-at-will; and
2. That the tenant must move no later than the fifth full "judicial day" (judicial days do not include the date of service, weekends, or certain legal holidays) following the day the notice was served.

The Five-Day Notice to Quit for Unlawful Detainer should inform the tenant:

1. That the tenant can oppose the notice by filing an affidavit/answer with the court no later than the fifth full judicial (business) day following the date of service of the notice (NRS  40.254(1)(c));
2. The name of the court that has jurisdiction where the tenant can file an affidavit/answer to oppose the notice (NRS 40.254(1)(b));
3. That if the court decides the tenant is guilty of an unlawful detainer, the court could issue a summary order, directing the sheriff or constable to post the order on the premises within 24 hours after the order is received by the sheriff or constable, and that the sheriff or constable will remove the tenant between 24 and 36 hours after posting (NRS 40.253(b)(2)); and
4. That a tenant can file an expedited complaint with the court if a landlord unlawfully locks the tenant out of the rental property or willfully interrupts an essential item or service (such as water, electricity, air conditioning, and the like) (NRS 40.253(3)(b)(3)).

If the landlord wants to use the "formal" eviction process (rather than the "summary" process), the landlord would serve only the first five-day notice.  The landlord would then file and serve a summons and complaint.  

When the tenant receives the Five-Day Notice to Quit for Tenancy-at-Will, the tenant can:

1. Move; or
2. Wait to receive the Five-Day Notice to Quit for Unlawful Detainer (which can be served only after the first five-day notice period runs).

When the tenant receives the Five-Day Notice to Quit for Unlawful Detainer, the tenant can, no later than the fifth full "judicial day" (judicial days do not include the date of service, weekends, or certain legal holidays):

1. Move; or
2. File an affidavit/answer with the justice court to oppose the notice and get a hearing with the judge; or
3. File a motion with the court, asking the court to "stay" (delay) the eviction for up to ten days (pursuant to NRS 70.010).

FYI!  You can file a motion to stay instead of filing an affidavit/answer.  Or you can file a motion to stay after the eviction order is entered. 

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What, exactly, is a "tenancy-at-will"?

• A "tenancy-at-will" is the type of tenancy that exists when the tenant (known as the "tenant-at-will") occupies the premises with the consent of the landlord (either express or implied) for an indefinite period of time with no periodic rent paid or reserved, where the tenancy can be terminated at any time at the will of either party.  (See Baker v. Simonds, 79 Nev. 434, 386 P.2d 86 (1963); 49 Am. Jur. 2d, Landlord and Tenant § 118.)
• An example of a tenancy-at-will might be where a homeowner allows a guest to stay with the homeowner without paying rent.  The guest enters the property with the owner's permission.  The guest can leave at any time, and the owner can ask the guest to leave at any time.  In other words, either party can terminate the tenancy at their will.

What are some of the reasons an eviction based upon a Five-Day Notice to Quit for Tenancy-at-Will might not be appropriate or might be denied by the court?

• The tenant was not actually a tenant-at-will, perhaps because the tenant paid money to the landlord or performed services for the landlord, or perhaps because there was some agreement between the landlord and tenant regarding how long the tenant could stay on the property.
• The notice the landlord served might not have complied with Nevada law, perhaps because it did not contain the required information, did not identify the correct court with jurisdiction, did not notify the tenant of tenant's right to oppose the notice, or any other number of possible defects.
• The landlord's notice might not have been served on the tenant by one of the methods required by Nevada law.
• The landlord's eviction violates the federal Fair Housing Act or Nevada law forbidding discrimination in housing based upon race, religious creed, color, national origin, disability, sexual orientation, gender identity or expression, ancestry, familial status, or sex.  (NRS 118.100.)
• The landlord is retaliating against the tenant because tenant, for example, complained to a governmental agency or inspector about the condition of the premises, complained to the landlord or police about a crime on the property, or refused to agree to regulations adopted by the landlord.  (NRS 118A.510.)