Estate at sufferance

Key Takeaways

• An estate at sufferance arises when a tenant who entered lawfully stays past the end of the right to possession without the landlord's consent.
• A tenant at sufferance is not a trespasser, because the occupancy began under a valid lease, so the landlord has to use the court process rather than a lockout.
• A holdover occupant still owes for the time spent in possession even though the right to be there has ended.
• Under RCW 59.18.650(1)(d), a Washington residential lease for a specified period becomes a month-to-month tenancy at its end date unless the landlord gave the advance written notice the statute requires.

What It Means

An estate at sufferance is what is left when a tenant who got in lawfully stays past the point where the right to be there ended. Washington's leasehold estates run in a rough order of strength: an estate for years with a fixed start and end date, a Periodic Tenancy that renews month to month, an estate at will that continues with the landlord's consent and no set term, and last the estate at sufferance, which has neither a term nor consent. What separates a sufferance tenant from a trespasser is history. The occupancy began under a valid Lease Agreement, so the landlord cannot treat the occupant as a stranger who wandered onto the land. What separates it from an estate at will is permission. An estate at will exists because the landlord allows it, and a sufferance estate exists only because the landlord has not yet removed the occupant. The holdover still owes for the time in possession, and the landlord still has to go through the legal process to get the property back.

How It Works in Washington

Holding over is defined by statute. RCW 59.12.030(1) makes a tenant liable for unlawful detainer when the tenant holds over or continues in possession after the expiration of the term for which the property was let, and it adds that a tenancy for a specified term ends without notice at the expiration of that term. That is the clean picture for a commercial lease, and it is why an Unlawful Detainer action is the landlord's remedy.

Residential leases are where Washington students lose points. RCW 59.12.030 is expressly limited by RCW 59.18.650 for tenancies under the Residential Landlord Tenant Act. RCW 59.18.650(1)(d) says that for a specified-period tenancy not covered by the notice paths in (1)(b) or (1)(c), a landlord may not end the tenancy except for an enumerated cause, and upon the end date of the specified period the tenancy becomes a month-to-month tenancy. A residential tenant who simply stays past the last day of a one-year lease is usually not a tenant at sufferance in Washington. A landlord who wanted the unit back had to give at least sixty days' advance written notice before the end of the specified period.

Either way, self-help is off the table. RCW 59.18.290(1) makes it unlawful for a landlord to remove or exclude a tenant except under a court order, and a tenant removed in violation of that section may recover possession or terminate the rental agreement, and in either case recover actual damages. RCW 59.18.290(2) cuts the other direction: a tenant who holds over or excludes the landlord after termination is also acting unlawfully.

Example

Marcus Bell rents a Tacoma storefront under a three-year commercial lease at $3,400 a month that ends on August 31. He does not sign a renewal, and on September 1 he is still open for business with no permission to stay. That is an estate at sufferance. His landlord, Harborline Properties, does not change the locks. It files an unlawful detainer action in Pierce County Superior Court, because RCW 59.12.030(1) treats holding over after the expiration of the term as unlawful detainer and ends a specified-term tenancy without notice. Marcus occupies for 24 more days before the court restores possession, and he owes for them: 24 days at $113.33 a day comes to $2,720, on top of any damages Harborline proves.

Change one fact and the answer changes. If the space had been Marcus's apartment instead of his store, RCW 59.18.650(1)(d) would have turned the expired lease into a month-to-month tenancy on September 1, and there would be no estate at sufferance to argue about.

Common Mistakes and Exam Traps

• An estate at sufferance is a leasehold, not a freehold. It is possession without ownership, and it ranks lowest of the four leasehold estates.
• Permission is the dividing line between an estate at will and an estate at sufferance. An estate at will continues with the landlord's consent; a sufferance estate continues without it.
• A tenant at sufferance is not a trespasser. The occupancy began lawfully, which is why the landlord uses unlawful detainer rather than self-help.
• In Washington a residential lease that runs out does not automatically create a holdover. RCW 59.18.650(1)(d) converts it to a month-to-month tenancy unless the landlord gave the required notice.