TENANCY

Tenancy can be defined in any of the following ways:

• A habitation held or occupied by a tenant.
• Possession or occupancy of lands, buildings, or other property by title, under a lease, or on payment of rent.
• Property held or occupied by a tenant
• The act of dwelling in or living permanently in a place
• The period of a tenant’s occupancy or possession.
• The period of holding office, a position, etc.
• The period of holding or occupying such property
• The temporary possession or holding by a tenant of lands or property owned by another

Types of tenancies

1. Fixed-term tenancy or tenancy for years: A fixed-term tenancy or tenancy for years lasts for some fixed period of time. Despite the name, such a tenancy can last for any period of time – even a tenancy for one week would be called a tenancy for years. At common law the duration did not need to be certain, but could be conditioned upon the happening of some event, (e.g. “until the crops are ready for harvest”, “until the war is over”). In many jurisdictions that possibility has been partially or totally abolished. The tenancy will come to an end automatically when the fixed term runs out, or, in the case of a tenancy that ends on the happening of an event, when the event occurs. It is also possible for a tenant, either expressly or impliedly, to give up the tenancy to the landlord. This process is known as a surrender of the lease.

2. Periodic tenancy: A periodic tenancy’, also known as a tenancy from year to year, month to month, or week to week, is an estate that exists for some period of time determined by the term of the payment of rent. An oral lease for a tenancy of years that violates the statute of frauds (by committing to a lease of more than one year without being in writing) may actually create a periodic tenancy, the construed term being dependent on the laws of the jurisdiction where the leased premises are located. In many jurisdictions the “default” tenancy, where the parties have not explicitly specified a different arrangement, and where none is presumed under local or business custom, is the month-to-month tenancy.

Termination: The landlord may terminate the lease at any time by giving the tenant notice as required by statute. Typically, the landlord must give six months’ notice to terminate a tenancy from year to year. Tenants of lesser durations must typically receive notice equal to the period of the tenancy – for example, the landlord must give a month’s notice to terminate a tenancy from month to month. However, many jurisdictions have varied these required notice periods, and some have reduced them drastically. The notice must also state the effective date of termination, which, in many jurisdictions, must be on the last day of the payment period. In other words, if a month-to-month tenancy began on the 15th of the month, in such a jurisdiction the termination could not be on the 20th of the following month, even though this would give the tenant more than the required one month’s notice.

3. Tenancy at will: A tenancy at will is leasehold such that either the landlord or the tenant may terminate the tenancy at any time by giving reasonable notice. It usually occurs in the absence of a lease, or where the tenancy is not for consideration. Under the modern common law, tenancy at will can arise under the following circumstances:

• the parties expressly agree that the tenancy is at will and not for rent.
• a family member is allowed to live at home without formal arrangement. A nominal consideration may be required.
• a tenant wishes to occupy the property urgently, but there was insufficient time to negotiate and execute a lease. The tenancy at will terminates in this case as soon as a written lease is completed. If a lease fails to be realized, the tenant must vacate the property.

In a residential lease for consideration, a tenant may not be removed except for cause, even in the absence of a written lease. If a landlord can terminate the tenancy at will, a tenant by operation of law is also granted a reciprocal right to terminate at will. However, a lease that expressly continues at the will of the tenant (“for as long as the tenant desires to live on this land”) does not automatically provide the landlord with a reciprocal right to terminate, even for cause. Rather, such language may be construed to convey to the tenant a life estate or even a fee simple.

A tenancy at will terminates by operation of law, if:

• the tenant commits waste against the property;
• the tenant attempts to assign his tenancy;
• the landlord transfers his interest in the property;
• the landlord leases the property to another person;
• the tenant or the landlord dies.

4. Tenancy at sufferance: A tenancy at sufferance (sometimes called a holdover tenancy) exists when a tenant remains in possession of a property after the expiration of a lease, and until the landlord acts to eject the tenant from the property. Although the tenant is technically a trespasser at this point, and possession of this type is not a true estate in land, authorities recognise the condition in order to hold the tenant liable for rent. The landlord may evict such a tenant at any time, and without notice. The landlord may also impose a new lease on the holdover tenant. For a residential tenancy, this new tenancy is month to month. For a commercial tenancy of more than a year, the new tenancy is year to year; otherwise it is the same period as the period before the original lease expired. In either case, the landlord can raise the rent, so long as the landlord has told the tenant of the higher rent before the expiration of the original lease.

Tenant at Sufferance versus Tenant at Will

• Tenancy at Will: A tenancy at will arises whenever a tenant, with the consent of the landlord, occupies an apartment (and not merely as a servant or agent) on the terms that either party may acquire it, a tenancy at will, will terminate where either party does any act incompatible with the contumacy of the tenancy. For instance, where the tenant commits voluntary waste or where he enters the land and cuts trees or carries away stones or either party gives notice to the other determining the tenancy. The tenancy will also determine where either party dies or assigns his interest in the land. If a tenancy at will is created orally without agreement as to the payment of rent and rent is subsequently paid and accepted upon some regular periodical basis e.g. weekly, monthly, yearly, such tenancies shall automatically be converted to the class earlier on discussed.
• Tenancy at Sufferance: This arises where a tenant having entered upon land under a valid tenancy holds over i.e. remains in possession at the expiration of his tenancy without the landlord’s consent. This type of tenancy is distinguishable from a trespasser in that his original entry was lawful. Tenancy at sufferance differs from tenancy at will in the following respects:

5. Continuation tenancy: In some jurisdictions, the tenant has a legal right to remain in occupation of the premises after the end of a lease unless the landlord complies with a formal process to dispossess the tenant of the property. For example, in the United Kingdom, a business tenant has a right to continue occupying their demise after the end of their lease under the provisions of sections 24-28 of the Landlord and Tenant Act 1954 (unless these provisions were formally excluded by agreement before the lease was completed). At the end of their lease, they need not do anything but continue payment of rent at the previous level and uphold all other relevant covenants such as to keep the building in good repair. They cannot be evicted unless the landlord serves a formal notice to end the tenancy and successfully opposes the grant of the new lease to which the tenant has an automatic right. Even this can only be done under prescribed circumstances, for example the landlord’s desire to occupy the premises himself or to demolish and redevelop the building.

References

Aorata Limited (2011). Real Estate / Business Glossary. http://www.bizoptions.com/glossary/h.asp

Barron’s Business Dictionary. Dictionary of Business Terms. Copyright © 2007 by Barron’s Educational Series, Inc.

Barron’s Real Estate Dictionary. Dictionary of Real Estate Terms. Copyright © 2008 by Barron’s Educational Series, Inc.

Britannica Concise Encyclopaedia. Britannica Concise Encyclopaedia. © 1994-2011 Encyclopædia Britannica, Inc. All rights reserved.

Collins English Dictionary(2003). Tenancy. HarperCollins Publishers

Documatica Legal Forms, Inc. (2011). Glossary and Definitions. Residential Rental/Lease (USA). http://www.documatica-forms.com/usa/residential-rental-lease/more-info.php

Lease. (n.d.). Dictionary of Business Terms. Retrieved July 07, 2011, from Answers.com Web site: http://www.answers.com/topic/tenancy-for-years.

Lease. (n.d.). Dictionary of Real Estate Terms. Retrieved July 07, 2011, from Answers.com Web site: http://www.answers.com/topic/tenancy-for-years.

Lease. (n.d.). Wikipedia. Retrieved July 07, 2011, from Answers.com Web site: http://www.answers.com/topic/tenancy-for-years.

Leasehold estate. (n.d.). Britannica Concise Encyclopaedia. Retrieved July 07, 2011, from Answers.com Web site: http://www.answers.com/topic/leasehold-estate.

Leasehold estate. (n.d.). West’s Encyclopaedia of American Law. Retrieved July 07, 2011, from Answers.com Web site: http://www.answers.com/topic/leasehold-estate.

The American Heritage® Dictionary of the English Language, Fourth Edition copyright ©2000 by Houghton Mifflin Company. Updated in 2009. Published by Houghton Mifflin Company.

Thefreedictionary.com (2011). Tenancy.  http://www.thefreedictionary.com/tenancy

West’s Encyclopaedia of American Law. West’s Encyclopaedia of American Law. Copyright © 1998 by The Gale Group, Inc.

Wikipedia on Answers.com. This article is licensed under the Creative Commons Attribution/Share-Alike License. It uses material from the Wikipedia article Lease.