Tenancy at Sufferance vs. Tenancy at Will: Key Differences

If you have reached the section on leasehold estates in your exam prep, you have likely come across two terms that sound almost identical but have very different meanings: tenancy at sufferance and tenancy at will. These terms often confuse students because both involve a tenant remaining in possession without a fixed-term lease, but the key difference is whether the landlord consents to the tenant’s continued occupancy. 

Below, we provide a clear explanation of what each term means, how they differ from each other, and how to distinguish between them correctly on exam day.

What Is Tenancy at Will?

A tenancy at will (sometimes called an estate at will) is a rental arrangement with no fixed end date that continues with the consent of both the landlord and the tenant. Either party may generally terminate the tenancy, subject to any notice requirements imposed by state law.

The defining characteristic of this type of tenancy is consent. The landlord permits the tenant to remain on the property, and that permission continues until either party ends the arrangement according to applicable law. 

What Is Tenancy at Sufferance?

A tenancy at sufferance arises from a very different set of circumstances. It occurs when a tenant remains in a rented property after the lease has legally expired, without having obtained the landlord’s permission to stay. The tenant, often referred to as a “holdover tenant”, originally had a legal right to occupy the premises under a valid lease, but that right has expired, and the landlord has not agreed to extend it.

A tenant at sufferance is different from someone who entered the property as a trespasser because the tenant originally entered lawfully. The tenant initially gained access to the property legally; they simply failed to leave when required. You can visualize this as an occupancy that began lawfully: the tenant was invited in but has overstayed their welcome.

This distinction is also important beyond the scope of the exam. If you are assisting a client in acquiring a commercial property and a tenant remains on the premises after the lease has expired without signing a new one, the property is technically encumbered by unauthorized occupancy; a point worth noting during due diligence, as it can complicate the closing of the transaction or the buyer’s plans for the space.

Tenancy at Sufferance vs. Tenancy at Will: The Key Difference

Once you strip away the legal language, the difference between these two comes down to a single question: did the landlord agree to it?

• Tenancy at will → the landlord has given ongoing permission for the tenant to stay without a fixed end date. 
• Tenancy at sufferance → the landlord has not authorized the tenant’s continued possession, and the tenant is only there because the landlord hasn’t yet taken action to remove them.

This lack of consent is precisely what exposes a tenant remaining on the property without express authorization (tenant at sufferance) to the risk of eviction, whereas a tenant with revocable permission (tenant at will) generally does not face such a risk, provided the agreement remains in effect and either party provides proper notice of their intent to terminate it.

There is also a temporal distinction worth noting: a tenancy at will generally exists with the landlord’s ongoing consent, whereas a tenancy at sufferance arises after the tenant’s prior legal right to occupy the property has ended.

😉 Quick Exam Tip!WILL = Willing to let them stay. SUFFERANCE = They stay after their right has ended, and the landlord hasn’t agreed to it.If you remember “will = willing” and “sufferance = after the legal right to stay,” you can quickly tell the two apart on exam day.

Tenancy at Sufferance Example

A fixed-term lease expiring on December 31 results in a “tenancy at sufferance” starting January 1 if the tenant remains on the property without a new lease or written permission to stay. Although the terms of the original lease technically no longer govern the relationship, courts often require the tenant to fulfill obligations such as paying rent, based on common law principles, even in the absence of a valid lease.

Faced with this situation, the landlord has two options: accept rent payments, which may create or recognize a new tenancy depending on state law and the circumstances, or proceed with eviction following the state’s standard procedure. As a general rule, however, the landlord cannot take the law into their own hands; most states prohibit landlords from resorting to unilateral measures, such as changing the locks or removing the tenant’s belongings, without following the legal eviction process.

Tenancy at Sufferance vs. Periodic Tenancy

It is easy to confuse a tenancy at sufferance with a periodic tenancy, as both can arise after the expiration of an original lease agreement; however, they represent very different legal situations. A periodic tenancy renews automatically at set intervals (monthly or annually) with the landlord’s ongoing consent; its nature is similar to that of a tenancy at will, but it is linked to a recurring rent payment cycle.

In contrast, a tenancy at sufferance does not constitute a renewable agreement at all, but rather a temporary and unauthorized continued occupation of the property. In fact, it is common for one situation to evolve into the other: if the landlord accepts rent from a tenant who remains on the property after the lease has expired, that acceptance may create or recognize a new tenancy depending on state law and the circumstances, which may end the tenancy at sufferance and replace it with a recognized, consensual tenancy. 

Where These Fit Among the Four Leasehold Estates

For exam purposes, tenancy at will and tenancy at sufferance are two of the four leasehold estates, also known as less-than-freehold estates, you’re expected to know: 

1. Estate for years — a lease with a fixed start and end date, agreed to in advance.
2. Periodic tenancy — renews automatically at set intervals until either party gives proper notice to end it.
3. Tenancy at will — no fixed term, no lease required, continues with the landlord’s ongoing consent.
4. Tenancy at sufferance — a holdover situation following an expired lease, without the landlord’s consent.

Seeing all four side by side makes the distinctions much easier to hold onto than studying tenancy at sufferance and tenancy at will in isolation.

How State Law Treats These Tenancies Differently

The fundamental definitions of ‘tenancy at will’ and ‘tenancy at sufferance’ are uniform across the country; however, practical rules regarding notice periods, holdover rent, and eviction procedures vary considerably from state to state. 

The following explains how a couple of specific states address this issue, illustrating why the recommendation to ‘consult your state’s regulations’ is not merely a stock phrase on the exam.

• California. If a holdover tenant continues paying rent after their lease expires and the landlord accepts it, the tenancy generally converts into a month-to-month tenancy rather than remaining a true tenancy at sufferance. To end that arrangement, California law generally requires a 30-day notice for tenants who’ve lived in the unit less than a year, and a 60-day notice for tenancies of a year or longer, and for most residential tenants who’ve been in place 12 months or more, the landlord also needs a valid ‘just cause’ reason, since lease expiration alone isn’t automatically sufficient. If you’re studying for your license here, our California real estate exam prep covers landlord-tenant law like this in more depth.
• Florida. Florida law prohibits landlords from using self-help measures, like changing the locks, against a holdover tenant, and instead requires the standard statutory eviction process. Florida law also allows a residential landlord to recover double rent for the period during which a holdover tenant refuses to surrender possession after the rental agreement expires.  Our Florida real estate exam prep walks through more of these state-specific landlord-tenant rules if that’s the license you’re working toward.

The effect of accepting rent, the notice required to end a tenancy, and the eviction process can vary by state. For exam purposes, it is important to understand the general distinction between these tenancies and then apply the rules of the state being tested. 

Frequently Asked Questions

A few more questions that come up often around these two leasehold estates.

Does a tenant at sufferance still have to pay rent? 

Generally, yes. A holdover tenant may still owe rent or other amounts for continued occupancy, but the amount and applicable obligations depend on state law and the lease terms. 

Can a tenancy at will turn into a periodic tenancy? 

Yes. If a landlord and tenant with a tenancy at will begin following a regular rent-payment schedule, that pattern can establish a periodic tenancy, since courts often look at the actual conduct between the parties rather than just the original label.

Does a landlord need to give notice to end a tenancy at will? 

Often, yes. Notice requirements for ending a tenancy at will are governed by state law and vary by jurisdiction, so the applicable state’s requirements should be checked. 

Is a holdover tenant the same as a trespasser? 

Generally, a holdover tenant is distinguished from someone who entered as a trespasser because the holdover tenant originally entered the property lawfully. However, the legal treatment of a holdover occupant can vary by jurisdiction. 

Bottom Line

The key distinction between tenancy at will and tenancy at sufferance is consent. A tenant at will has the landlord’s ongoing permission, whereas a tenant at sufferance does not. 

Keeping this single difference in mind makes the rest of the concept, including its relationship to periodic tenancies and eviction, quickly fall into place.

For a deeper legal definition straight from the source, the Cornell Law School Legal Information Institute is a solid reference to bookmark while you study.

Ready to see how leasehold estates show up in exam-style questions? Start with a free Lexawise practice exam to test your recall, then explore the full Lexawise exam package when you’re ready to study in earnest.