What Is a Holdover Tenant?
A holdover tenant is a renter who remains in a property after the expiration of the lease. If the landlord continues to accept rent payments, the holdover tenant can continue to legally occupy the property, and state laws and court rulings determine the length of the holdover tenant’s new rental term. If the landlord does not accept further rent payments, the tenant is considered to be trespassing, and if they do not promptly move out, an eviction may be necessary.
- A holdover tenant is a tenant who continues to pay rent, even after the lease has expired. The landlord must also agree, or else eviction proceedings may occur.
- Holdover tenancy exists in a gray area between a full rental contract and trespassing. Even a simple one-sentence agreement offers more protection to all parties and should be considered.
- This issue is often negated by the month-to-month rental clause that's in most tenancy agreements.
Understanding Holdover Tenants
Landlords who want to avoid the mistake of winding up with a holdover tenant should always include a clause in the original lease stating what happens at the end of the lease period in order to protect their property and interests. A year-long apartment rental lease, for example, might specify that when the lease expires, it converts to a month-to-month lease.
If a landlord accepts rent from a holdover tenant, the implications vary based on state and local laws. In some cases accepting payment resets the lease term. To illustrate, if the original lease was for a year, a new year-long lease starts when the landlord accepts a rent payment after the first lease has expired. In other cases accepting payment from a holdover tenant triggers a month-to-month lease.
To remove a tenant from a property, a landlord must initiate a holdover proceeding, which essentially is an eviction case that is not based on missed rent payments. This is a process that is usually handled in eviction or small claims courts.
If a landlord wants a holdover tenant to vacate a property, the landlord must not accept rent from the tenant and must treat them as a trespasser.
Holdover Tenant Rights
Holdover tenants have a tenancy at sufferance. The term “sufferance” means the absence of objection without genuine approval, and a tenancy at sufferance is the opposite of a tenancy-at-will, where a tenant occupies the property with the consent of the owner but generally without a written contract or lease. Tenancy at sufferance, on the other hand, refers to holdover tenants of an expired lease who no longer have the landlord’s permission to remain in the property but have not yet been evicted.
When a landlord wishes to evict you as a holdover tenant, they generally must serve you with a notice of termination, though, as noted above, this is regulated by the state and so can vary from state to state. The notice precipitates the holdover proceeding. In New York State, a notice of termination must be served in the following circumstances:
- Your lease ended, but the landlord/owner has since taken rent from you.
- You have no written lease, but you pay rent each month.
- The landlord/owner wants to evict you even though the lease is not up.
- You live in rent regulated housing.
- You have a Section 8 subsidy.
- Your lease requires it.
The notice must tell you the reason for the termination, the date on which you must move, and that the landlord will begin legal action if you don’t comply by the deadline. Reasons can include the expiration of a lease, bad behavior as a tenant (being too noisy, for example, or having an unapproved pet), being a subtenant without the landlord’s knowledge, being a squatter (moving in without the landlord’s knowledge), unreasonably refusing the landlord access to the property, and having made unapproved physical changes to the premises (such as putting up a wall).
However, you are not entitled to receive a notice of termination if your lease has expired but you have remained in the property without paying rent. In that case a landlord can begin a holdover proceeding without notice.