A tenancy at sufferance occurs when a tenant continues to live in a rental property after their lease has expired. Landlords and tenants usually sign a lease agreement that allows the tenant to live in the property for a set period of time, but there are situations when the tenant might remain in residence after this time period has expired.
This creates a tenancy at sufferance, but both the landlord and the tenant have certain rights in this situation.
What Is a Tenancy at Sufferance?
When a landlord has not yet asked a tenant to leave the premises and hasn't yet filed to evict the tenant, it's a tenancy at sufferance if they also haven't given the tenant permission to stay in the unit. It can apply to both residential and commercial properties.
In some states, the tenant must also have stopped paying rent to be considered a tenant at sufferance.
- Alternate name: Holdover tenancy
How a Tenancy at Sufferance Works
The tenant originally entered the property legally under a lease agreement so they can't legally be removed for trespassing. The tenant is still responsible for following the terms of the lease even after it expires, however, because they're still living in the rental.
The tenant must continue to pay their rent according to the original lease terms. This includes the amount stated in the lease, the due date, and the method by which the rent must be paid.
The tenant must follow any additional lease clauses that were included as part of the original lease agreement as well. This can include the landlord’s right to enter the tenant’s rental with proper notice to show the unit to prospective tenants. The landlord has grounds for immediate eviction if the tenant violates any part of the original lease agreement, including paying their rent.
Tenancy at Sufferance vs. Tenancy at Will
The main difference between a tenancy at sufferance and a tenancy at will is that the landlord has actually given permission to a tenant at will to live in the rental property after the original lease agreement has ended. It's a matter of consent. A tenancy at sufferance occurs without the landlord’s permission.
There's usually no written contract or lease agreement between a landlord and tenant in a tenancy at will. There are no strict terms that either party must follow. There's usually no set ending date. A tenancy at will is a lenient and usually verbal agreement between the landlord and tenant, but there are still certain basic rules that both parties must follow.
The landlord must keep the rental property in a safe and habitable condition, and give proper notice before entering the tenant's rental unit. The tenant must pay rent and refrain from causing damage in excess of normal wear and tear.
|Tenancy at Sufferance||Tenancy at Will|
|Tenant does not have landlord's permission to remain in the unit.||Landlord has consented to the tenant living in the property.|
|A tenancy in sufferance occurs after a lease has expired and has not been renewed in writing.||A tenancy at will implies a verbal agreement.|
|The terms of the rental relationship continue after the lease has expires.||The rental relationship is open-ended and includes no strict terms.|
Requirements for Ending a Tenancy at Sufferance
The party who wishes to end the agreement must send the other party written notice to vacate. This must usually be done at least 30 days before the desired move-out date, although the exact time frame will be determined by state law.
Some states, including Virginia, do not require that the tenant be given notice.
Landlord’s Rights in a Tenancy at Sufferance
A landlord has a few options during a tenancy at sufferance. They can choose to renew the lease, evict the tenant, or find a new tenant.
If the landlord and tenant are both happy with the current living situation, the landlord can offer the tenant the option to renew their lease or sign a new lease. The terms of the new lease become binding when the tenant and landlord both sign it.
Alternatively, the landlord might decide that they want the tenant to vacate the property. The first step in this case would be to send the tenant a notice to quit. A landlord might be able to skip this step and immediately file with the court for eviction due to the fact that the tenant is occupying the rental illegally. It would depend on individual state law.
A notice to quit should:
- Be sent via certified mail.
- Describe the behavior that must be corrected. In this case, the tenant should move out of the rental property.
- Give the tenant a certain number of days to do so, which is determined by state law. Three to seven days is common.
- The landlord can file with the court to formally evict the tenant if the tenant doesn't move out within the allotted timeframe.
The court will notify the tenant of the eviction proceedings. The tenant can decide to move out before the court date or can appear in court to plead their case or to try to be granted a stay.
A landlord has the right to find a new tenant to live in the rental unit if they haven't signed a new lease with the tenant at sufferance. The landlord can serve the current tenant with a notice to quit and to move out of the rental so a new tenant can move in. The landlord would have to file for eviction if the current tenant refuses to move.
Some states, including Nebraska, give a landlord the right to also sue for up to three times the landlord's actual damages and attorney's fees if a tenant at sufferance refuses to leave, preventing the landlord from renting to a new tenant.
Tenant’s Rights in a Tenancy at Sufferance
A tenant at sufferance is still entitled to certain basic rights even though they don't have the landlord's permission to remain in the rental. This includes the right to privacy and to file a complaint about a health or safety violation at the property.
- A tenancy in sufferance occurs when a lease has expired and the tenant remains in the rental unit.
- The landlord cannot have given consent for the tenant to remain in residence, although they don’t necessarily have to have asked the tenant to leave.
- The tenant is still responsible for upholding the terms of the lease even though it has expired, including paying rent.
- The landlord must continue to keep the property in safe and habitable condition, but can file for eviction after sending the tenant written notice that they must leave.