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How long can a tenant stay after the lease expires?

Real estate investing

Tenancy that's not enforced by a formal lease agreement is known as tenancy-at-will, also referred to as month-to-month tenancy. While this sort of tenancy prevents vacancy, it deprives the landlord of the legal protections and peace of mind that come with a formal lease agreement. 

There are a number of terms that refer to residents who stay after a lease ends.

Holdover tenants

If a tenant stays beyond the terms of a lease, the term use is “holdover tenant.” How such tenants are treated varies from state to state, so property owners should be aware of local regulations.

To avoid holdover tenants, a property owner should communicate about a lease renewal 60 days before their lease term expires. Checking in early on a tenant's intentions is a way to reduce vacancy, and lost periods of rental income. 

Evicting holdover tenants

Resorting to eviction to get rid of a holdover tenant can be time-consuming and costly. Some states are more landlord-friendly, which means evictions are easier. To reduce the likelihood of evictions, have a thorough screening process that includes an eviction history check.

A previous eviction does not disqualify a tenant, as it happens for good reasons in some cases, just as there are reasons for early lease termination that have nothing to do with violating the lease terms (life emergencies, domestic abuse, military deployment, etc.).

Property owners have two options: an eviction based for trespassing, or allowing a tenant to stay month-to-month. If the tenant is reliable, a month-to-month arrangement may work out.

In some cases, an extension or a new lease is the way to go. But if a tenant is unreliable or often late with the rent, it’s best to look for a new tenant. Avoid collecting any rent after the lease expires which would preclude the option of an eviction based on trespassing.

Holdover tenants are treated like month-to-month tenants in most states. If you intend to evict them, you must serve them a notice in advance. A 30-day notice is standard in most places. The best way to avoid surprising liabilities is to outline what the policy is for holdover tenancy in your lease agreement. 

Letting your tenant know in writing that their lease will expire in 30 days and that their choices are either to move out or renew the lease will help you avoid holdover tenants. Although, if they choose not to move, you’ll still be in the position of having to decide your response. 

Gestures that show tenant appreciation and encourage lease renewals can help cultivate the sort of tenant-landlord relationship where the tenant will consider the landlord’s position enough to communicate their decision. 

Periodic tenancy

Period tenancy is a less commonly used term. It refers to leases with no fixed term or end date. The lease agreement remains binding until either the landlord or tenant gives notice that the tenancy is over. So long as the rent keeps coming, the lease remains in effect. Periodic leases are either weekly or monthly. 

Your tenancy becomes period if you accept rental payments from a holdover tenant. Preventing vacancy is a significant positive, but you lack the stability and legal protection of a binding lease agreement. If you live in a state where you can raise the rent for a periodic tenancy with enough notice, then you could use the possibility of a rent increase as leverage to get them to resign their lease. 

Otherwise, your tenant will have to either agree to pay the new rental price or vacate by the date on the notice. 

Tenancy at sufferance

Tenancy at sufferance occurs when the tenant occupies the rental unit and pays rent without a formal rental agreement without the landlord’s consent. Rent can be accepted while still wanting the tenant to leave. In some states, this makes the eviction process harder since the tenant is no longer thought to be committing trespassing. 

Cash for keys

One option for getting an unwanted holdover tenant to leave is cash for keys. That’s when you pay a tenant to vacate. The advantage of this method is that, if it works, it requires minimal effort. 

Start the negotiation with a minimal amount, say 10% of the monthly rent or an additional portion of their security deposit. Whatever you do, don’t give them the money until you’ve got their keys and they’ve fully moved themselves and their belongings out. Use the threat of eviction as leverage if need be.

What a landlord cannot do to get a tenant to leave

  • Change the locks
  • Shut off utilities
  • Harass a tenant
  • Remove personal property
  • Threaten to or use force

Wrapping up

A tenant who doesn’t want to leave once a lease has ended can be dealt with in numerous ways, and an eviction is best avoided. Offering cash for keys or a rent increase may be all that is needed to free up a rental unit.

In most cases, a landlord benefits from a formal lease agreement, and these should in effect on most rental properties.

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