Tenancy at Sufferance

The term “tenancy at sufferance” refers to the period during which a person renting a property continues to live on that property after his lease has expired, but before the landlord demands that he leave. In the event of a tenancy at sufferance, the original terms of the lease must be met, including the payment of any outstanding rent. If not, the landlord has permission to evict the tenant at any time without giving the tenant prior notice. To explore this concept, consider the following tenancy at sufferance definition.

Definition of Tenancy at Sufferance

Noun

  1. The period wherein a tenant remains living on the premises after his lease has expired, but before his landlord demands that he move out.

Origin of Sufferance

1250-1300       Middle English suffrance

What is Tenancy at Sufferance

The term “tenancy at sufferance” is also referred to as a “holdover tenancy,” or an “estate at sufferance.” For example, tenancy at sufferance means is that a tenant continues to live on the premises, without permission, after his lease has expired, and before his landlord decides to evict him. While this could be considered trespassing, it legally is not. This is because the holdover tenant started off doing the right thing by entering into a legal agreement with his landlord to take over the property, but has ultimately overstayed his welcome.

Even if the lease has expired, and the tenant continues to live on the premises without permission, all of the provisions of the lease, such as payments, rights, and responsibilities, will remain the same until the tenant vacates the premises, or the landlord finds a new tenant. For example, a tenancy at sufferance gives the landlord the option to make the tenant a normal tenant once again under a new term. This is usually done if the tenant and the landlord are on good terms with each other. If the landlord chooses to do this, then he is officially giving the tenant legal permission to possess the property once again.

However, if the landlord and tenant did have not a good relationship, the landlord may instead pursue a second option: giving the tenant a notice to quit. This means that the landlord is essentially warning the tenant to leave within a certain time period. If the tenant does not leave, then the landlord can file for an eviction, which begins by giving the tenant notice that he has three, five, or thirty days to leave the premises, whichever option the landlord decides upon. After the specified period is up, the landlord can file a claim for eviction, and the tenant will be notified that an official court proceeding is being established to handle the matter.

Tenancy at Sufferance vs. Tenancy at Will

The main difference between tenancy at will and tenancy at sufferance is whether consent from the landlord exists for the tenant to remain in possession of the property. If a landlord permits a tenant to keep possession of the property after the lease ends, then the tenancy is considered to be “at will.” The tenancy becomes what is referred to as a “periodic tenancy” once the tenant begins to regularly pay rent. If the landlord does not, however, authorize the tenant to remain on the property after his lease has expired, the tenancy is said to be “at sufferance.”

During a tenancy at sufferance, if the tenant chooses to pay rent despite his lease having expired, and the landlord accepts those payments, then the very existence of a tenancy at sufferance arrangement can be challenged. This is because the landlord’s acceptance of rent payments at a time when the tenant should technically be evicted may indicate the landlord’s consent for the tenant to continue living there. The written terms of the lease may be relied upon to either confirm or challenge this assumption of consent.

Tenancy at Will

A tenancy at will is an unwritten agreement between the landlord and the tenant that allows the tenant to remain on the premises without an official lease termination date, or written specific dollar amount of rent payments due. A tenancy at will, like a tenancy at sufferance, can begin upon the expiration of the tenant’s lease. A tenancy at will ends upon the tenant’s failure to pay rent on a regular schedule. It can also be terminated by either the landlord or the tenant, with advance notice being given by either party. This notice is usually given 30 days before the desired date of termination, though the laws vary by jurisdiction.

Further, while not required, a lease can include a provision wherein the tenant would be permitted to remain on the premises after the expiration date of the lease, provided he pays rent at a higher rate. This rate is usually marked up between 150 and 200 percent of the original rent payment. This rate is locked in for a specific amount of time, which allows the tenant to find a new place while also guaranteeing the landlord that he will continue to receive regular rent payments while attempting to find a new tenant.

Tenancy at Sufferance Example Involving a Lease and Sublease

An example of tenancy at sufferance being brought before a court of law can be found in a case involving commercial real estate. In 1980, Martin Dale owned a commercial real estate lot in Westfield, Massachusetts. Dale wasn’t the only one in charge of the property, though. International Harvester Company (“International”) held a lease on the property, which it subleased to PCP Realty Trust (“Realty Trust”).

On December 31, 1983, International transferred all of its rights in the property to Dale. Realty Trust then paid directly to Dale $1,500 a month in rent, which represented the rent it would have paid to International under the sublease if International had maintained its lease on the property. Several years later, H. B. Smith Company, Inc. signed a sublease agreement with Realty Trust, making it Realty Trust’s tenant.

In September of 1989, Dale sued both, claiming that Realty Trust had chosen not to renew its sublease, and seeking to take back possession of the property. The state court ruled in Dale’s favor, allowing him to take back possession of the property. The court’s decision was based on its finding that Realty Trust’s sublease had actually expired in May of that year, and that Realty Trust had chosen to stay on the premises as a tenant in sufferance.

Smith and Realty Trust appealed the decision before Dale had a chance to act on the district court’s order, which had been scheduled to go into effect the following August. Smith had been directed to continue paying regular monthly rent to Realty Trust. Realty Trust, in turn, was directed to continue paying rent to Dale, as well as monthly escrow payments to the court, which would be held as an appeal bond. Realty Trust and Smith both reneged on this agreement, however, and stopped making these payments in January of 1991.

Therefore, it was no surprise that, in May of 1991, Smith and Realty Trust’s appeals were both dismissed for their failure to pay as directed by the appeal bond. Realty Trust appealed the dismissal order, but that too was dismissed, and the court released the escrowed funds (appeal bond) to Dale. In February of 1992, Dale took back the property, which he was allowed to do, given his victory in state court.

Dale then sued Smith for damages in the U.S. District Court for the District of Massachusetts. The damages Dale sought were equal to the rent he would have received as part of the sublease that Realty Trust and Smith had created. These damages were meant to compensate for each month that Smith had acted as a tenant in sufferance, and included the property taxes that would have also been due during this period. Dale argued that Smith had become a tenant a sufferance on June 1, 1989 – the day after Dale and Realty Trust’s sublease expired.

Dale argued that Smith continued to act as a tenant at sufferance until Dale was able to take back control of the property in February of 1992. Dale also demanded additional damages from Smith to repair three poles that Smith had allegedly damaged during its tenancy.

Once again, Dale won his lawsuit, with the Court finding that Smith had indeed acted as a tenant at sufferance, and that Smith was to be held liable for its use of the premises. The court granted Dale the rent payments he was owed for every month that Smith had acted like a tenant in sufferance, minus the monies Dale had received from the appeal bond. Dale was also awarded the property taxes – with interest – that he was seeking, along with the damages claim he had made for the damage to the poles.

However, Dale was unhappy with the amounts decided upon by the Court, and so he appealed to the U.S. Court of Appeals for the First Circuit. Smith filed its appeal based on its disagreement with the fact that damages were awarded at all. The Court agreed with the lower court, but only in part. Ultimately, the Court vacated the judgment in part, and remanded the case to the district court, directing the court to enter a judgment against Smith that included interest. In all other respects, however, the Court affirmed the district court’s judgment.

Related Legal Terms and Issues

  • Appeal Bond – A bond that a court requires from an appellant who wants to delay paying as directed in a court order until the appeal has concluded.
  • Damages – A monetary award in compensation for a financial loss, loss of or damage to personal or real property, or an injury.
  • Eviction – The act of removing a tenant from a property.
  • Landlord – A person who rents a parcel of land, building, or apartment to a tenant.
  • Lease – A contract by which an individual transfers property to another party for a specific period of time in return for regular rent payments.
  • Sublease – A lease of property from a tenant to a subtenant.
  • Subtenant – A person who leases a parcel of property from a tenant.
  • Sufferance – Approval via the absence of an objection, as opposed to one giving his official approval.
  • Tenant – A person who rents a building, apartment, or parcel of land from a landlord.

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