In this post, we will break down what a holdover tenant is and how a landlord should handle this situation.
A table of contents for holdover tenant:
- How long can a tenant stay after the lease expires?
- What is a holdover tenant?
- What can I do with a holdover tenant?
- How do I avoid agreeing to a holdover tenancy?
- How to evict a holdover tenant
- FAQs for holdover tenant
If the landlord continues to collect rent from holdover tenants without creating a new lease, most states will recognize the tenant as having a tenancy equal to the rent payment period. For instance, if a landlord collects rent from the tenant on the first of every month even after the lease has expired, the tenant will generally be considered to have a month-to-month tenancy.
The landlord or the tenant can also terminate the agreement with one month’s notice in this situation.
Notice to terminate such an agreement must usually be the length of the rent payment period. For instance, if the rent is paid once a month, the landlord must give the tenant notice to quit at least one month before the tenant is expected to move out. If the rent is paid in a single yearly “lump sum,” notice must be given at least one year in advance, in most states.
A holdover tenant is a tenant who stays on the property after his or her lease has expired, without the landlord’s explicit permission. A holdover tenant (sometimes incorrectly referred to as a “tenancy at sufferance”) may stay at the property as long as the landlord doesn’t take any specific actions.
Landlords who have a holdover tenant typically have one of two legal options:
- Let the tenant stay. A landlord who continues to accept monthly rent and allows the tenant to stay cannot later seek to evict the tenant on the basis of the holdover.
- Treat the tenant as a trespasser and seek eviction. The landlord can usually evict the tenant for non-payment of rent or criminal behavior. The landlord may also be able to terminate the agreement with notice equal to the rent payment period.
In most jurisdictions, landlords are bound to whichever option they choose.
The easiest way to avoid accidentally agreeing to a holdover term is to refuse to accept any rent payment after the date the lease ends unless it is a payment for rent due under the lease (for instance, a payment for back rent).
For example, if the lease ends on December 31, the landlord should not accept a rent payment from a holdover tenant for January of the next year unless a new lease is signed.
Accepting rent is a signal that the landlord agrees to convert the tenancy into a month-to-month or similar agreement.
Evicting a hold over tenant may be slightly different in your state than evicting a tenant under a provision in a lease.
To evict a hold over tenant, the landlord must treat the tenant as a trespasser who does not have permission to be on the property and who is acting wrongfully by staying on the property from the moment the lease ends.
The best way to deal with a trespasser will depend on the laws of your state and locality. Consult an experienced attorney in your area for specific tips on how to evict a hold-over tenant.
A few commonly asked questions pertaining to holdover tenants…
Holdover Tenant vs. Tenant at Sufferance
We mentioned earlier what a holdover tenant is but according to Professor Bernard Vail at Lewis & Clark “The common-law definition of a ‘Tenancy at Sufferance’ was the tenancy that existed after a tenant held over, and before the landlord made up his mind to treat the holdover as a trespasser or as a tenant for a new term (which in many states would be a periodic tenant). This definition still holds true in many states.”
What is a periodic tenancy?
A periodic tenancy has no defined ending date as the “term” keeps rolling over and over. If neither
the tenant or landlord gives the other a sufficient notice, the tenancy will repeat depending on what its initial periodic setup was.
For example, if rent was paid monthly the periodic tenancy will be a month-to-month tenancy. If rent was paid weekly the periodic tenancy will be week-to-week.
Lease expired tenant won’t leave
If the lease expired and the tenant won’t leave you’ll need to either file an eviction or let the tenant be. If you do nothing than the tenant will become a holdover tenant as discussed earlier in this post. If you’re going to proceed forward with an eviction be sure to follow all the proper legal procedures.