If you are living in your apartment without a lease but with the permission of your landlord, your are a tenant at will. This is the most common type of tenancy. It is also referred to as month-to-month tenancy because landlords usually require tenants to pay rent once a month, in advance.
As a tenant at will, you have the right to "lawful and exclusive possession" of the place you rent. This means that your landlord cannot come into your apartment without your permission. If she does, the law says that she is trespassing.2 Unfortunately, many landlords think that they can enter an apartment whenever they want because they own the property. The law allows a landlord to enter a tenant's apartment only in certain situations. For more information about when a landlord can enter your apartment, see Landlord's right to enter your home.
Who Is a Tenant at Will
The law says you are a tenant at will if:
- You have an oral agreement to rent;3
- You have a written tenancy at will agreement that either says you have a month-to-month tenancy or does not specify when your tenancy ends. (Remember, if you have a written agreement that is for a fixed term or specifies the date your tenancy ends, you have a lease).
- Your written lease has ended or "expired," you have not signed a new lease, and your landlord continues to accept rent at the beginning of the month without objecting or writing on your rent check "for use and occupancy only";
- Your landlord sends you a valid notice to quit and then later decides to allow you to stay on without a new lease;
- You have a written lease that does not state the date on which your tenancy will end or the amount of the rent (in other words, your lease is not valid4
- You have lived in a rooming house for more than three consecutive months;
- You have a written lease that is not subsidized under state or federal law (for example, a Section 8 voucher) and the landlord lost the building in foreclosure on or after November 29, 2007.5
If you remain in your apartment without permission from your landlord after your lease or tenancy at will agreement ends or your landlord terminates your tenancy, you are a tenant at sufferance.6 Technically, under the law, you do not have a tenancy because your landlord does not agree to your having possession of the apartment. The law, however, does not consider you to be a trespasser because, at one point in time, your landlord did agree to your renting the apartment.7 See Chapter 5: Rents for more about rental payments for tenants at sufferance.
Like other tenants, tenants at sufferance have a right to a decent place to live, can enforce the state Sanitary Code, and have the right to sue their landlord for negligence.8
The biggest difference between a tenant at will and a tenant at sufferance is that if you are a tenant at sufferance, a landlord can evict you without giving you any written notice that she wants you out. This does not mean that a landlord can come into your apartment and physically move you out. If you are a tenant at sufferance, a landlord must still go to court and ask the court for permission to evict you.9
Even though the landlord does not have to let you know that she is going to court, once a landlord goes to court, she must send you notice of the eviction hearing . The document that you will receive is called a Summons and Complaint. If you receive a court summons, do not ignore it. Contact an attorney as soon as possible, and see Chapter 13: Evictions. You have a right to defend yourself in court and try to prevent or delay the eviction.
Who Is a Tenant at Sufferance
You are a tenant at sufferance if:
- Your written lease expires (it is not self-extending or you do not renew it for another term) and the landlord protests your staying;10
- Your landlord sends you a valid notice to quit and terminates your tenancy for breaking your lease;
- Your landlord sends you a valid 14-day notice to quit for non-payment of rent;11
- You were a tenant at will and you are now in your apartment or holding over after your landlord sent you a valid notice to quit;12
- You are a subtenant and you are holding over after the original tenant's lease ended;13
- You are in an apartment after your landlord has gotten an order from the court giving her permission to evict you (even if you have received a stay of execution from the court, giving you permission to stay for a certain period of time14 or
- Your landlord loses her property by eminent domain15 and the new owner has not accepted rent from you.
Can a Tenant at Sufferance Become a Tenant at Will
A tenancy at sufferance can easily be converted back into a tenancy at will. All that is required is for you and your landlord to agree to the arrangement, either in writing or orally, or by your landlord's accepting rent without "reserving her rights." For example, if you pay rent at the beginning of the month and your landlord accepts it without reserving her rights, you become a tenant at will. To properly reserve her rights to keep you as a tenant at sufferance, a landlord should give you a receipt for rent or money paid stating "for use and occupancy only." If a landlord does not do this, you may become a tenant at will.16
2 . Dickinson v. Goodspeed, 62 Mass. (8 Cush.) 119, 120-21 (1851).
3 . G.L. c. 183, §3. "An estate or interest in land created without an instrument in writing signed by the grantor or by his attorney shall have the force and effect of an estate at will only. . . ."
4 . Murray v. Cherrington, 99 Mass.229, 230-31 (1868 Berman v. Shaheen, 273 Mass. 343, 344 (1930 Marchesi v. Brabant, 338 Mass. 790, 790 (1959) (holding that a memorandum without date of commencement or termination of occupancy was not a lease).
5 . G.L. c. 186, §13. If the tenant has a written lease subsidized under state or federal law (for example, via a Section 8 voucher), a foreclosure does not affect the lease or the terms of the tenancy. G.L. c. 186, §13A (effective November 29, 2008 Federal Home Loan Mortgage Corp. v. Hobbs, Boston Housing Court, 95-SP-04475 (Winik, J., Dec. 18, 1995).
6 .Staples v. Collins, 321 Mass. 449, 451 (1947).
7 . G.L. c. 266, §120.
8 . Traditionally, tenants at sufferance were hardly more than trespassers, Benton v. Williams, 202 Mass. 189, 192 (1909). In recent years, tenants at sufferance have gained most of the rights of tenants at will, such as the right to enforce the state Sanitary Code, Brown v. Guerrier, 390 Mass. 631, 633 (1983), and the right to sue the landlord for negligence, King v. G & M Realty Corp., 373 Mass. 658, 664 (1977). For an excellent summary of the traditional view of tenants at sufferance, see The Tenancy at Sufferance in Massachusetts, 44 University Law Review 213 (1964).
9 . G.L. c. 184, §18; G.L. c. 186, §14; G.L. c. 186, §15F; and G.L. c. 266, §120. At one time, a landlord could evict a tenant without going to court, if she could do so without breaching the peace. This is no longer the law and your landlord must have a proper court order to evict you.
10 . Amesv. Beal, 284 Mass. 56, 59 (1933).
11 . G.L. c. 182, §12. Any tenant who has not received a 14-day notice to quit in the preceding 12 months may avoid becoming a tenant at sufferance by paying the rent due within 10 days of receiving the notice.
12 . Benton v. Williams, 202 Mass. 189, 192 (1909).
13 . Evans v. Reed, 71 Mass. (5 Gray) 308, 309 (1855).
14 . Galjaard v. Day, 325 Mass. 475, 476 (1950).
15 . Lowell Hous. Auth. v. Save-Mor Furniture Stores Inc., 346 Mass. 426, 430 (1963).
16 . Jones v. Webb, 320 Mass. 702, 706 (1947).