One thing to not only know but understand as a landlord is tenancy at will.
In this article, we will explore:
- What tenancy at will — also known as estate at will — is
- How tenancy at will or estate at will works
- The rights of both the landlord and the tenant with tenancy at will
- How the eviction process factors in with tenancy at will
- And more
If you’re ready to learn everything you need to know about tenancy at will, let’s get started!
What is Tenancy at Will?
In the world of real estate, tenancy at will refers to an unwritten agreement between a property owner or landlord and a tenant or an agreement that is considered a “month to month” lease, meaning that there is no written end date for the tenant’s residency.
It is important to note that the details of tenancy at will vary by state, so you should be sure to talk to a real estate agent or real estate attorney in your state to verify that you are operating legally.
Since there is no written agreement in place or a written agreement that doesn’t state the tenant’s last date of residence, tenancy at will agreements can be terminated by either party at any time.
When is Tenancy at Will Used?
In most cases, tenancy at will, or estate at will, is used in cases where you, as the landlord, have a previous relationship with the tenant.
Since written lease agreements dictate every aspect of a tenant’s residency at the property, these unwritten agreements are more acceptable when the landlord and the tenant have an established relationship.
While you are certainly free to establish a tenancy at will agreement with a tenant that you don’t have a previous relationship with, that sort of estate at will agreement is rare — and can be considered risky.
If you allow a tenant that you don’t know to live month to month with no written notice of an end date, two things can happen:
- The tenant can leave unexpectedly. This leaves you as the landlord with little time to find a new renter, and can result in a loss of monthly cash flow while looking for a new tenant.
- The tenant can stay for much longer than the landlord anticipates, resulting in problems for you.
Keep in mind that for tenancy at will to be in play, there can be either a written agreement or no written agreement — but either way, there is no end date written down or discussed.
Example of Tenancy at Will
In order to better understand how an estate at will agreement works, let’s take a look at a hypothetical situation at tenancy at will.
Since you have an established relationship with her, you may not want to go through the legalities involved with a lease, signed by both parties, notarized and filed.
With this in mind, you and her simply sit down and discuss how the rental agreement will work out.
Even though nothing is written out, you and your niece reach a verbal agreement that dictates, including:
- how much rent is due
- when rent will be paid
- which party is responsible for maintenance issues in the property
- and more
While you may not be comfortable reaching this type of an agreement with a stranger, you aren’t as hesitant to come to that level of understanding with a relative.
In this situation, you and your niece are both operating under an estate at will.
Rights of Both Parties: Tenancy at Will
The deeper nuances of the rights of each party in an estate at will agreement may vary by state.
Even though there isn’t a written agreement that covers the costs assumed by the tenant and the responsibilities issued to the landlord, both parties still have certain rights associated with their role in the agreement.
It is also important to understand that the rights of both parties are impacted by the type of estate at will agreement in place. If there is no written agreement the rights of either party may not be the same as they would be when there is a written agreement that doesn’t have an expiration date.
Landlord’s Rights in Tenancy at Will
As the landlord in a tenancy at will situation, you are still protected by certain laws.
Again, these laws often vary by state, but most states share some common rental laws.
For instance, most states require a “30 day notice to landlord” be given by a tenant who is planning on leaving a property.
This “30 day notice to landlord” ensures that you are able to start advertising the property once the current tenant moves out. Once you have received the “30 day notice to landlord”, most states allow you to begin advertising and showing the property immediately.
Quite simply, without a “30 day notice to landlord” requirement, tenants could leave your property vacant and you would be left without an income stream from the subject property until a new tenant was found.
The punishment for failure to provide a 30 day notice to landlord varies by state, so you would need to consult with a real estate attorney in your state to determine the best course of action to take.
Tenant’s Rights in Tenancy at Will
Similarly, there are laws that protect the tenant in a tenancy at will agreement.
In the same way that tenants are required to give ample notice, as a landlord, you are required to provide the tenant with a 30 day notice to vacate.
Even if your rental agreement wasn’t written, you generally need to provide a 30 day notice to vacate in writing to ensure that it is enforceable.
This 30 day notice to vacate protects both parties. Not only does it set an end date for the rental agreement, but it also ensures that the tenant, who receives the 30 day notice to vacate, can begin the process of finding a new home.
As a landlord, you can face civil charges if you fail to provide a 30-day notice to vacate to a tenant.
Tenancy at Will vs. Tenancy at Sufferance
When discussing tenancy at will or estate at will, landlords may confuse it will tenancy at sufferance, though there are specific differences to understand.
The primary difference between tenancy at will or estate at will and tenancy at sufferance is the fact that in tenancy at sufferance, the tenant is no longer supposed to be living in the property.
As the landlord, once you’ve given the tenant 30 days to leave the property, he or she enters into tenancy at sufferance on the 31st day.
In tenancy at sufferance, the tenant simply stays in the property beyond the time that he or she is supposed to leave.
Similarly, a tenant who stays beyond a verbally-agreed-upon exit date enters tenancy at suffrage.
As a landlord, you are required to issue a second written notice to the tenant.
Next, we’ll look at the tenancy at will eviction procedure.
Tenancy at Will Eviction Procedure
The process of evicting a tenant works the same with or without a written lease.
Remember, a tenancy at will agreement can contain a written agreement, even if it doesn’t list a date for the tenant to leave.
If any of the agreements in a tenancy at will are broken, you can begin the eviction process.
As a landlord, you are required to provide an eviction notice to the tenant which must provide a 30-day notice in most states.
To evict a tenant at will, put the eviction notice in writing and file it with the local authorities that your state requires.
The Bottom Line: Tenancy at Will
Tenancy at will or estate at will agreements are one of many options when you’re looking for tenants to fill your rental properties.
Keep in mind that you will want to avoid using them when you don’t know the tenant personally.
However, knowing how to operate within your state’s landlord laws is the most important aspect, regardless of the type of lease agreement that you reach.