Tenancies usually have a specified term, such as one year, two years or five years. Sufferance tenancy has to do with the type of tenancy that exists when this term expires. Landlords who rent property to tenants should take care to understand their rights and responsibilities when these terms expire.
A sufferance tenancy results when a tenant’s lease has expired. This is also known as a holdover tenant. The important thing to understand about a sufferance tenancy is that the terms and conditions of the lease agreement still continue to apply after the term. This includes mandatory payments, responsibilities, duties of each party, conditions of the property and the rights of the parties. These factors continue in place until the tenant leaves the property or the landlord takes action to evict the tenant.
A sufferance tenancy results when a tenant resides in the residence past the time the term has ended and gives the landlord rent. By accepting this payment, the landlord has accepted the holdover tenant for a new term. However, a holdover tenant does not have the landlord’s technical permission from the landlord. However, the law does not consider the tenant to be trespassing because the tenant is paying rent and the landlord has given permission in the past for the tenant to be on the property.
Tenants at sufferance generally have the same legal rights as other types of tenants. However, in some jurisdictions, these individuals do not have the same rights regarding evictions. Tenants at will often must be provided with written notice and more time if the landlord wants to evict them. However, the judicial process may still be required to legally evict a tenant in sufferance.
A tenant in sufferance usually exists because the written lease has expired and is not self-extended. The tenant may have chosen not to renew the lease but continues to reside on the property and pay rent. A tenant in sufferance may also exist if a landlord sends a valid notice to end the tenancy because the tenant has violated the lease or because he or she failed to pay rent.
If the landlord and the tenant enter into a new lease, the terms of this new lease will override the default provisions that result from a sufferance tenancy. By fixing a new term in a new lease, the landlord has granted the official legal right to the tenant to occupy the premises.
Tenants at Will
If the landlord and tenant enter into a new term, the tenant becomes one at will. This legal designation is reserved for individuals who do not have a lease but who do have the landlord’s permission to remain on the property. These tenants continue to reside on the property on a month-to-month basis. Tenants pay rent once a month in advance. If either party wants to end the relationship, they give 30-days’ notice.
Tenants at will have the exclusive right to possess the property. Landlords generally do not have the right to enter the property without notice or permission beforehand, but this varies by state and whether the agreement allows the landlord to enter the property. Tenants at will often exist because the landlord and tenant have an oral agreement to rent the property, have a written lease that says that the tenancy is month-to-month or that specifies that a tenancy at will will exist if the tenant does not provide notice, the landlord accepts rent at the beginning of the next month without objecting to it, the landlord has sent a notice telling the tenant to leave but then reneged on this or has a written lease that does not state the date the tenancy will end.
Converting Tenancy at Sufferance to Tenancy at Will
A tenancy at sufferance can be converted to a tenancy at will. This is usually created when the landlord and tenant agree to the arrangement in a new written or oral lease or if the landlord accepts rent without objecting. Some states require specific terms to be used for the landlord to preserve his or her right to the property such as saying that the payment is for “use and occupancy only” to keep a tenant at sufferance. If a tenancy at will becomes active, the landlord cannot simply go back and forth. He or she is committed to the new lease term.
Leases can be complex legal issues, requiring the use of an experienced real estate lawyer who can review any written or oral leases to determine the rights that apply in the situation.