When a landlord and tenant are entering into a lease agreement, there are a few leasing options that vary based on structure: a periodic tenancy, tenancy for years and a tenancy at will. These lease types vary in the length of time that the tenant is allowed to live on the property, but they share the commonality that the tenant could remain on the premises after the expiration of the lease. Under Arizona law, this is called a “holdover tenant.”
A less common lease agreement includes a “tenancy at sufferance,” which is the term for when a property renter is legally permitted to live on a property after the lease term has expired but before the landlord demands the tenant vacate the property. In this type of agreement, the tenant must still meet the preset terms (such as rent and other lease conditions) and can be evicted if they are not met.
Arizona Revised Statutes §33-341 establishes the state laws for termination of a tenancy and what defines a tenancy at sufferance. This is what landlords and tenants need to know.
What is Tenancy at Sufferance in Arizona?
Tenancy at sufferance in Arizona is defined as the post-lease expiration period during which a tenant does not have a tenancy because the landlord has not agreed for them to have possession of the property. However, state law does not consider them to be trespassing because the landlord agreed to rent to them at one point in time.
The qualifications for a tenancy at sufferance are as follows:
- The written lease has expired, and it is not self-extending or the landlord does not renew it for another term.
- The landlord protests to the tenant remaining.
- Landlord sends the tenant a valid notice to (pay or) quit, terminating his or her tenancy for breaking the lease.
- Tenant or subtenant remains on property after receiving notice to quit OR notice to pay or quit.
Arizona landlords should know that residential tenants at sufferance are still protected by the Arizona Residential Landlord and Tenant Act, and must be treated the same as they were before the lease expiration. However, there are steps that landlords can take in the case of a tenant holdover.
What Can a Landlord do When Tenant Holds Over Without Permission
The circumstances that lead to a tenancy of sufferance can later include eviction proceedings, which typically go into effect if the landlord intends to lease the still-inhabited space to new occupants. Even if the landlord does not have incoming occupants, there are two solutions: the buyout and the new lease.
It is legal for the landlord or property owner to offer a buyout to the holdover tenant so that they will exit the property. This can be the more expensive option, but it would expedite the process and guarantee that the tenant vacates the premises. On the other hand, the landlord could offer a new lease agreement, which, if signed, would end the tenancy at sufferance and bind both parties to the terms of the lease.
Differences for a Commercial Tenant Hold Over in Arizona
Many of the processes surrounding tenancy at sufferance are similar in commercial leases, but there are two primary differences. First, if the tenant remains of property without the express consent of the landlord, the lease does not automatically renew and instead transitions to month-to-month tenancy with the same rent amount. This more temporary lease agreement is also flexible, with either party being able to terminate the month-to-month tenancy with 10 days notice to the other party. Of course, the parties need to review the lease agreement as well to determine the rights and obligations of each party.
Find an Experience Real Estate Attorney in Phoenix
MacQueen & Gottlieb has significant experience with landlord rights in Arizona and we can help review your lease agreement to decide on the best course of action. Our attorneys can represent you throughout the entire process and assist with all negotiations if needed. Contact us today at (602) 562-7218 to schedule an initial consultation or make an appointment online.