Tenancy at Sufferance

The following question was asked by a reader of the blog:

The questions sometimes make distinctions between residential and nonresidential tenants with the hold over doctrine. What should we know about this?

Response:

There are a bunch of tenancies to know in regards to landlord-tenant law, and one of them is a tenancy at sufferance. A tenancy at sufferance arises when a tenant wrongfully remains in possession after the expiration of the tenancy. In this context, the tenant is deemed to be holding over, so that the hold-over doctrine applies.

The hold-over doctrine provides that a tenancy at sufferance will be terminated when the landlord takes steps to evict the tenant. The landlord has a few options here, however. The landlord can evict the tenant, or bind the tenant to a new periodic tenancy. If the original nonresidential tenancy was for a shorter duration than year-to-year, then, if the landlord chooses to bind the nonresidential tenant to a new periodic tenancy, the tenant will be bound by the frequency of rent payments in the previous tenancy. For example, if the previous tenancy was month-to-month, the tenant will be bound by a new month-to-month tenancy. Note that if the question presents a nonresidential tenant, and the tenancy was for year-to-year or longer, that tenant can be bound by a new year-to-year tenancy. In contrast, a residential tenant who remains in possession after the expiration of the least will be bound only by a month-to-month tenancy at most (if the landlord chooses not to evict,) regardless of the terms of the previous tenancy.

The tenant (both residential and nonresidential) also assumes the risk that the rent will increase for the new tenancy.