What is Tenancy-At-Will?
Question
What exactly is tenancy-at-will?
Answer
Basically, a tenancy at will is a tenancy that can be terminated at any time by either the tenant or the owner (landlord). It exists without a contract or lease, and is unspecific in duration or the exchange of paymentVarious legal dictionaries have somewhat different definitions of “tenancy-at-will” and the definition has changed over time and currently has somewhat different meanings and rules among the various states. Also, in modern times such a tenancy is usually regulated in some manner by statute and/or court decisions, with it actually being essentially prohibited for all practical purposes in some jurisdictions due to such regulation.
In olden times a tenancy-at-will was basically the occupation by someone of real property owned by another (the landlord) until such time as the landlord gave notice of termination of the tenancy. It was a tenancy that the landlord could terminate at any time and for any reason. Over time many jurisdictions have extended the definition to give the tenant the same or somewhat different right of termination. So, now, in most jurisdictions a tenancy-at-will is a tenancy which either the landlord or the tenant may terminate at any time by giving “reasonable” notice if the notice period is not defined by statute or case law.
A tenancy that explicitly exists at the will of the tenant (e.g., stating “for as long as the tenant desires to live on this land”) generally does not mean that the landlord may terminate the lease in the same manner. Instead, in many states such language might be interpreted as granting the tenant a life estate.
One again, although the advance notice period could long ago be of any length, now, even if not covered by statute or case law, it probably should be at least a reasonable amount of time in order to pass muster with a judge, with the minimum period being reasonable. When a notice period is not defined by the lease agreement or state law, some degree of safety is probably provided by giving at least 30 days’ notice. A tenancy-at-will is created by agreement between the tenant and the landlord, but it cannot usually be transferred by the tenant to someone else since the landlord controls the right to occupy.
A tenancy-at-will usually results when a tenant occupies rental property with the landlord’s consent and makes rent payments in the absence of any formal lease agreement (oral or written) or when a family member is living on the property. A tenancy-at-will can also be created when a tenant has the landlord’s permission to stay on the property past the expiration of the rental agreement without a formal extension or renewal of a lease agreement when the agreement has no provision for such continuation beyond the date of expiration. The laws of many states make such a case revert to a month-to-month tenancy.
A tenancy-at-will usually become ineffective (is broken) when either the landlord or tenant dies; the landlord sells or otherwise transfers his interest in the property; the landlord leases the property to another; the tenant commits waste against the property; the tenant attempts to assign his tenancy; the tenant operates a criminal enterprise on the property; or that tenant ceases utilizing the property (vacates).
A tenant-at-will is different from a “holdover tenant” in that the former has permission of the landlord to stay beyond the expiration date of the agreement, while the latter usually does not. A tenant-at-will is usually required to continue making rent payments as long as he is allowed to remain.
A tenancy-at-will comes to an end when either the landlord or the tenant acts in a way that is inconsistent with a tenancy.
For example, in “olden days” the changing of locks by the landlord would indicate the end of the tenancy. However, in most jurisdictions, a landlord is prohibited from using such a “self-help” remedy to terminate a residential tenancy. Doing so would usually constitute a “constructive eviction” and expose the landlord to liability, either civil or criminal or both.
Since tenancies-at-will are now governed by law in many states, this means that a state’s landlord-tenant law now usually applies to tenancies-at-will, including eviction laws and security deposit laws. For example, if the tenant-at-will fails to pay rent, the landlord must demand possession and immediately file in court a complaint for possession.