Estate at will

Key Takeaways

• An estate at will is a leasehold with no fixed ending date that continues only while both the owner and the occupant want it to, and at common law either side may end it after proper notice.
• An estate at will is one of the four leasehold estates, alongside the estate for years, the periodic tenancy, and the estate at sufferance, and every leasehold gives possession without ownership.
• Consent is the dividing line: a tenancy at will exists with the owner's permission, while a tenancy at sufferance continues after the right to possession has ended and without permission.
• Washington converts most indefinite rentals into a month-to-month periodic tenancy under RCW 59.18.200, so a pure estate at will rarely survives in a Washington residential rental.

What It Means

An estate at will, also called a tenancy at will, is a leasehold interest with no fixed ending date. It lasts only as long as both the property owner and the occupant want it to last. It is one of the four leasehold estates a student has to keep straight, alongside the estate for years, the periodic tenancy, and the estate at sufferance. Like every leasehold, it hands the tenant possession and use without handing over ownership, so it is a non-freehold interest, and the lease itself is treated as personal property rather than real property.

The usual way an estate at will appears is by drift rather than by design. A one-year lease runs out, nobody signs a renewal, and the tenant stays on with the owner's blessing. Neither side has committed to a new term, so at common law either side can end the arrangement after giving proper notice. Consent is what the exam questions probe. If the owner agrees to the occupancy, it is an estate at will. If the occupant simply refuses to leave after the right to possession ends, the interest becomes an estate at sufferance and the owner's remedy is an Unlawful Detainer action. A Periodic Tenancy is different again, because it renews itself for a set period until someone gives notice.

How It Works in Washington

Washington has largely written the common law estate at will out of residential rentals, and a broker who quotes the textbook rule to a client will be wrong. RCW 59.18.200(1)(a), part of the Residential Landlord Tenant Act, provides that when premises are rented for an indefinite time with monthly or other periodic rent reserved, the tenancy shall be construed to be a tenancy from month to month, or from period to period on which rent is payable. So the open-ended arrangement that looks like an estate at will is treated in Washington as a periodic tenancy from the start. The same subsection lets the tenant end it with written notice of 20 days or more preceding the end of any of the months or periods of tenancy. RCW 59.04.010 pushes the same direction on the long end by abolishing tenancies from year to year except when created by express written contract.

The landlord's side is where Washington diverges hardest from the classic definition. RCW 59.18.650(1)(a) states that a landlord may not evict a tenant, refuse to continue a tenancy, or end a periodic tenancy except for the causes enumerated in that section. Terminable at any time by either party is therefore only half true here: the tenant retains that freedom, and the landlord does not. If someone takes possession without the owner's consent, RCW 59.04.050 makes that person a tenant by sufferance, who must pay reasonable rent and surrender possession on demand. The distinction shows up constantly in estates in land questions on the license exam.

Example

Dana Kirchner rents a house in Kent from owner Marcus Bell under a written 12-month lease at $2,100 a month that ends August 31. No renewal is signed. Dana keeps paying $2,100 on September 1 and Marcus keeps cashing it. A textbook would call that an estate at will. Washington does not. Under RCW 59.18.200(1)(a) the arrangement is construed as a tenancy from month to month, because the premises are rented for an indefinite time with monthly rent reserved. If Dana wants out at the end of October, she has to give written notice at least 20 days before October 31, so notice delivered on October 10 works and notice delivered on October 20 does not. Marcus cannot simply tell her the lease expired and ask her to go. Under RCW 59.18.650 he needs one of the causes listed in the statute before he can end the tenancy.

Common Mistakes and Exam Traps

• Estate at will and estate at sufferance are not the same answer. The tenant at will occupies with the owner's consent, and the tenant at sufferance occupies without it after the right to possession ended.
• An estate at will is not a periodic tenancy. A periodic tenancy runs in repeating fixed periods that renew automatically, while an estate at will has no period at all.
• A leasehold is a non-freehold estate. Students who see the word estate and pick a freehold answer such as fee simple or life estate are choosing the wrong family of interests.
• Terminable at any time by either party is the common law rule, not the Washington residential rule. RCW 59.18.650 requires the landlord to have cause.