A tenancy at sufferance is when a tenant whose lease has expired continues to lease a property without signing a new agreement. This “holdover” tenant typically continues to uphold the terms of the original lease until a new one is created.
In California, a “holdover” tenant who does not pay rent after a lease’s expiration date is considered a trespasser.
Additionally, an estate at sufferance, also known as tenancy at sufferance, is when an agreement between a landlord and tenant expires and the tenant still lives at the real property without the owner’s consent.
In an estate at sufferance, if the agreement expires and the tenant is still living at the property, the original terms of the agreement will still be enforced. The terms of the agreement refer to the rent amount and any other obligations on which the tenant and landlord have originally agreed. If the original terms have not been met, the landlord has the right to evict the tenant at any time without rationale.
When a Tenant Fails to Make Payments or Meet Obligations
In the case that a holdover tenant refuses to leave the property after give a notice to quit, the landlord has the right to take legal actions such as filing a lawsuit against the tenant.
During an estate at sufferance, the tenant and landlord will typically not engage in any communication, either verbally or in writing, regarding the lease’s expiration. A tenant stays in the leased property following the expiration of the lease agreement is referred to as a party holding an estate at sufferance.
Tenancy at Sufferance vs Tenancy at Will
A tenancy at will and a tenancy at sufferance are similar in that both situations feature a tenant who lives on a property without a current lease. However, a tenancy at sufferance differs in that the tenant did once have an official agreement.
A tenancy at will — also known as an “estate at will” — is a flexible lease in which a tenant occupies a property without a formal written agreement. Typically, this type of agreement has no definitive beginning or end date; rather, a landlord agrees to lease to a tenant “until further notice”.
Why a Tenancy at Sufferance Will Occur
A tenancy at sufferance typically occurs when both the landlord and tenant wish to continue the existing rental agreement without signing a new one. Both parties may opt for this option to avoid changing the terms of the previous agreement. For example, when rental rates increase in the neighborhood, it will likely be beneficial for the tenant to keep the existing lease to avoid paying a higher monthly rent. Oftentimes, landlords will increase the cost of rent by up to 3% per year. If a landlord agrees, the tenant can keep the existing rental rate and save money on rent.
Another less common instances when a tenancy at sufferance results is when a tenant refuses to vacate a property. Such a situation would create a scenario where the tenant will remain in the property, however be forced to pay the old base rent or be subject to forceable removable. Removing a tenant is time consuming, typically taking between 3-12 months. The landlord will likely want to continue collecting rental payments until the period in which the tenant vacates.
Pros and Cons of a Tenancy at Sufferance
A tenancy at sufferance may be beneficial for some, while to the detriment of others. In instances when rental rates increase, it may be in the best interest of the tenant to keep the original lease, however approval of such an arrangement is at the discretion of the landlord. Conversely, instances when such an arrangement is not to the best interest of a party, is a landlord whom continues an existing lease, even when rental rates go up.
The main benefit of a tenancy at sufferance is flexibility. When a landlord does not know whether they wish to develop a property or not, or increase rates, choosing a tenancy at sufferance may be beneficial.
