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What Is Tenancy at Sufferance?

Both landlords and tenants have rights and responsibilities -- even after the lease term ends.

[Updated: Feb 04, 2021] Sep 01, 2020 by Barbara Zito
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Tenancy at sufferance occurs when a rental lease has expired, but the tenant continues to occupy the property. While the tenant has not been given express permission to stay, the landlord has not yet started eviction proceedings. In certain states, tenancy at sufferance may be declared if a tenant stops paying rent while in the midst of a rental lease. This situation is also known as a holdover tenancy, and it can apply to both residential and commercial leases.

When a tenant stays after a rental agreement has expired, the situation has the potential to be very problematic. Eviction could be in the near future, but still, the tenant has rights. The landlord also has rights, but along with those rights come responsibilities, too.

The holdover tenant is not considered to be trespassing because they were legally permitted to occupy the property under the original lease. However, unless they want to be evicted, they must continue to pay rent, as well as follow the other terms of the original lease. As soon as the tenant stops paying rent or does anything else to violate the lease, the landlord has the right to evict.

Tenancy at sufferance vs. tenancy at will

At first blush, tenancy at sufferance might seem similar to another situation known as tenancy at will. Indeed, both situations are similar in that the tenant continues to occupy the property after the residential or commercial lease term has expired. However, there's one major difference: consent of the landlord.

In tenancy at will, the landlord grants express permission for the tenant to stay. The arrangement does not involve a contract or lease; it might even be based on a verbal agreement that remains open-ended. Aside from remission of the rent payment, there are usually no other special terms with which the tenant must comply. The informal agreement can be canceled by the other party -- usually with sufficient notice -- so it's not the same as breaking a lease.

In tenancy at sufferance, the tenant stays without the consent of the landlord. Because the tenant was originally allowed to be there because of the signed lease, tenancy at sufferance is not the same as squatting, a scenario in which the tenant was never permitted on the premises in the first place.

Rights and responsibilities of landlords and tenants

Landlords wishing to end a tenancy at sufferance have several options:

  1. They can renew the lease, which is a possibility if the current tenant had been unsure about staying on and now would like to.
  2. They can sell the property or find a new tenant, in which case they must provide the tenant with a notice to vacate. The written notice to quit must be sent by certified mail, and it must clearly communicate by when the tenant must leave; the time allowed varies by state.
  3. They can evict, though this is a time consuming and expensive endeavor. Some states allow landlords to start eviction proceedings directly.

Even though the holdover tenant has not been given permission to stay, the landlord still must uphold their responsibility of maintaining a safe and livable property.

The tenant still has basic rights, including the right to live in a habitable property; they have the right to file a complaint in the event of any violations of health or safety. Tenants also have the right to privacy: The landlord must still give appropriate notice before entering an occupied unit. In the case of eviction, the tenant can move out of the rental unit before they're supposed to appear in court, or they may go to court and ask to be granted a stay.

Here's a list of tenant and landlord rights and responsibilities at a glance:

Tenant Rights and Responsibilities Landlord Rights and Responsibilities
Right to privacy Can renew/grant a new lease or find a new tenant
Can file a complaint about unsafe property Must maintain safe/habitable property
Can ask for a new lease/renewal Must give notice before entering occupied unit
Can ask for stay in court if eviction proceedings begin Can serve a notice to vacate/quit followed by eviction proceedings (some states may allow eviction to happen right away)

Appropriate situations for tenancy at sufferance

Despite its foreboding name, not all tenancy at sufferance situations are negative, nor is eviction always inevitable.Tenancy at sufferance may occur even when there's a good tenant/landlord situation.

In the case of a long-term tenant who will be moving on to a new place and doesn't require a full year's lease, it might make sense to allow them to be a holdover tenant for the short term, especially if a landlord doesn't have a new tenant waiting to move in.

How to avoid tenancy at sufferance

Because tenancy at sufferance has potential for landlord/tenant drama, it's better for a landlord to seek a more positive alternative, like periodic tenancy.

A periodic tenant is one who signs a short-term lease that stipulates a time frame for continued tenancy, though there is no specific end date. This could be a renewable month-to-month rental agreement. The agreement must stipulate when notice should be given to end the agreement, upon which the tenant will vacate the rental unit. Periodic tenancy is better than tenancy at sufferance in that both parties are in communication and agreement about the longer occupancy.

Smart landlords will only permit tenants to occupy a property when a signed lease agreement is in place. This lease should stipulate how the tenant can go about renewing the lease, as well the amount of notice they must give if they aren't renewing the lease.

It might be tempting to skip a lease for long-term tenants with a track record of on-time rent payment. And it might be even more tempting when friends or family members become lessees. Still, a lease puts all terms in black and white. Good landlord-tenant communication is also key. Should something occur during the lease term, like a tenant needs to end a lease early, it's important to stay on the same page to avoid any misunderstanding. While the lease terms are likely to stand, especially when there's a penalty for early rental termination, the open channel of communication is key to avoiding problems.

The bottom line

Eviction proceedings and tenant mediation can be quite expensive. Plus the law does allow for a surprising number of rights for the tenant even though their lease has expired. While there are select situations in which it might be suitable to have a tenant occupy a property without a lease, it's better to have at least a periodic lease in place to avoid tenancy at sufferance.

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