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If you are a landlord or thinking of renting out properties, you have an obligation to educate yourself about something that is referred to as “tenancy at sufferance” or otherwise known as a holdover tenant. When you are dealing with tenants who no longer have the legal right to occupy the property, it is essential that you understand what your rights are as a landlord concerning a tenancy at sufferance. Read on to explore what a tenancy at sufferance is and how to deal with one.  

Lease agreement


Tenancy At Sufferance Definition


What is a tenancy at sufferance? A tenancy at sufferance, also known as an estate at sufferance or a holdover tenancy, occurs when a tenant occupies a property after the lease ends but before they are evicted. This tenancy at sufferance can occur in both residential and commercial properties. If the landlord has not given the tenant permission to continue occupying the unit but has not yet obtained an order of eviction, it is a tenancy at sufferance.  


What Can A Landlord Do If There Is A Holdover Tenant?


While the tenant is still occupying the rental, they must still adhere to the expired lease terms, which includes offering to pay rent. A landlord should be cautious about accepting rent from a holdover tenant. However, it could negatively impact a tenancy at sufferance argument later on. If the landlord accepts rent from the holdover tenant, it may serve as an argument for the holdover tenant that the landlord was fine with the tenancy continuing past the lease expiration. It is understood that the tenant originally entered onto the property under the terms of a lease, so the landlord can’t claim that the tenant is trespassing in many jurisdictions. Other jurisdictions will consider the holdover tenant a trespasser. A local landlord attorney will be able to tell you if you can claim that the tenant is trespassing pursuant to your state law. The tenant must also adhere to any additional terms in the lease allowing the landlord to enter the property with reasonable notice to show the property to prospective tenants.  


For the landlord to end the tenancy at sufferance, the landlord must provide the tenant with written notice that they must vacate the premises. Typically, the written notice needs to give the tenant 30 days, but your jurisdiction may require a different time frame. An experienced landlord-tenant law attorney can assist you with understanding the relevant law. After the landlord has properly served the 30-day notice to quit the premises and the tenant at sufferance has not left the unit, the landlord would be within their rights to begin eviction proceedings.  

Landlord showing tenant lease agreement.

Once the eviction action is before the court, the tenant can appear and plead their case to the judge. As long as the landlord has followed all the required steps to notify the tenant both that they are required to quit the property and notice of the eviction proceedings, it is probable that the landlord will get the eviction order.  


Once a landlord has an eviction order, local law enforcement can assist with removing the tenant and their belonging from the property. If the tenant abandons the property, the landlord may, depending on the jurisdiction, be required to hold on to the property to return to the tenant for a short period of time before disposing of the property.  



Damages For Tenancy At Sufferance


You can ask the court for damages from the tenancy at sufferance. Specifically, if the holdover tenant did not pay rent or the landlord did not accept rent according to the terms of the expired lease while holding over, they will owe the landlord that rent. All the landlord would need to prove to the court is the day the tenancy terminated and calculate the rent from the termination date to the date the holdover tenant vacated the property.  


Some jurisdictions may allow the landlord to also recover attorney’s fees for being forced to sue for holdover damages in court. A consultation with an experienced landlord-tenant lawyer is always a good idea to see what your rights are as far as requesting and receiving attorney’s fees in addition to holdover damages.  


The best plan for dealing with a possible tenancy at sufferance or holdover tenant is to consult with a local landlord-tenant attorney who can assist you in drafting provisions regarding holdover into your lease documents. The landlord-tenant law attorneys at O’Flaherty Law are experienced in dealing with holdover tenants. They could help you navigate a tenancy at sufferance or increase your chances of avoiding one. Feel free to give O’Flaherty Law a call, and we would be happy to help you. Our location attorneys in Illinois are ready to help you with you divorce needs.  

June 23, 2022
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