A hold-over tenant is a tenant whose lease has expired but continues to occupy the premises without the landlord’s consent. This situation is also know as tenancy at sufferance. This can occur at the end of a term of years tenancy or periodic tenancy.

What Can a Landlord Do about a Hold-over Tenant?

A landlord has two options when it comes to dealing with a hold-over tenant:

  1. Accept the hold-over tenant as a tenant for a new lease term
  2. Treat the hold-over tenant as a trespasser and sue to evict and recover damages

Once the landlord chooses a course of action, he are bound to it and cannot seek another remedy.

Creating a New Lease Term

A landlord may unilaterally choose to hold a tenant to a new term, in effect renewing the lease under the old contract. Once this decision is made, it is can’t be changed. If the landlord accepts a rent check after the expiration of the lease, this may automatically renew the lease for a new term. The election to hold the tenant to a new term must be made within a reasonable time or the right is lost.

The right to election is waived by the landlord if:

  • The landlord tells the tenant that election of a new term will not be sought.
  • The landlord accepts payment for the use of the property that does not bear a relationship to the rent previously paid.
  • The landlord initially chooses to treat the hold-over tenant as a trespasser and seeks eviction. In some instances, equitable considerations may defer the landlord’s right of election. 

Some states have statutes that prevent a landlord from holding a tenant to a full lease term. In these states, a landlord who does not seek eviction of a hold-over tenant and continues to accept monthly rent checks is, in effect, agreeing to an extension of the lease on a month-to-month basis.

Treat the Hold-over Tenant as a Trespasser

A landlord may choose to treat the hold-over tenant as a trespasser. To do this, the landlord must initially, and at all times, treat the tenant as a wrongful possessor of the property. In order for a landlord to remove a hold-over tenant from the property, they must go through an eviction process.

Typically, landlords are required to go through the judicial process by bring an action for eviction (i.e., unlawful detainer).

Should I Consult a Lawyer?

An experienced real estate attorney can help you decide whether to treat a hold-over tenant as a trespasser or to elect to hold them to a new term. If you choose to evict the hold-over tenant, your attorney can help guide you through the judicial process necessary for eviction. If you choose to hold the tenant to a new term, your attorney can help you enforce your decision and ensure the hold-over tenant fulfills his new duties and obligations.