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:
- They can renew the lease, which is a possibility if the current tenant had been unsure about staying on and now would like to.
- 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.
- 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: