Tenancy at Sufferance

[Elaine Brooks]

If Landlord sends an invoice to "tenant at sufferance" showing their increase in rent (which has doubled because of month to month overhold without Landlord's consent); does this mean the Landlord has provided written notice acknowledging month to month tenancy? and if so, is the tenant no longer obliged to pay double rent?

I would think it best for the Landlord not to send anything, however, how would you collect accordingly to the terms of the lease?

If the Landlord wants to keep the tenant as a tenant at Sufferance in order to maintain control of the space until they find a more desirable tenant, are they required to put anything in writing?

Need to act on this issue in the next 24 hours - hope someone can clarify for me......

Thanks!

[OHlandlord]

Elaine, why wouldn't you want to acknowledge the tenant as a month to month tenant? I assume the tenant has held over at the end of the lease and is now subject to the high rent level per a lease clause. Just because the lease expired, doesn't mean that the lease terms don't still apply. When a lease ends, the tenant sometimes stays on a month to month basis, but on the same terms as the original lease. So if the original lease called for a big rent increase after its expiration, that rent level is in effect. You can send notice that the rent will be $XXX after XX/XX/XX date as per the lease clause for holding over after the end of the lease. Alternatively, you can send no notice, wait til they try to pay the lower rent level, then send a Pay or Quit notice telling them that they need to pay the new rent level or be evicted.

If you want to keep this tenant until another (better) one comes along, let them stay at the same rent level (or slightly higher rent level), but don't sign another lease with them. When you want them to leave, you can give them a 30 (in some places a 60) day notice to vacate. Keep in mind that the tenant will also be able to give you this notice to vacate whenever they feel like moving out also.

[Elaine Brooks]

Hi there, I'm impressed with the prompt response - thank you!
I believe the first option you present is what I'll go with: Notice advising tenant rent has increased as per Article XX of the lease for holding over after lease expiry. This clarifies that we are not agreeing to terms for a month to month tenancy, but rather advising they are now a tenant at sufference.

For interest purposes here are the articles of the lease below:

13.01 Month to Month Tenancy. If with Landlord’s written consent Tenant remains in possession of the Premises after the expiration of the Term or other termination of this Lease, Tenant will be deemed to be occupying the Premises on a month to month tenancy only, at a monthly rental equal to the Rent as determined in accordance with Articles 4.01, 4.02, 4.03 and 4.04 or such other rental as is stated in such written consent, and such month to month tenancy may be terminated by Landlord or Tenant on the last day of any calendar month by delivery of at least 30 days’ advance written notice of termination to the other.
13.02 Tenancy at Sufferance. If without Landlord’s written consent Tenant remains in possession of the Premises after the expiration of the Term or other termination of this Lease, Tenant will be deemed to be occupying the Premises upon a tenancy at sufferance only, at a monthly rental equal to two times the Rent determined in accordance with Articles 4.01, 4.02, 4.03 and 4.04. Such tenancy at sufferance may be immediately terminated by Landlord at any time by notice of termination to Tenant, and by Tenant on the last day of any calendar month by at least 30 days’ advance written notice of termination to Landlord.
13.03 General. Any month to month tenancy or tenancy at sufferance hereunder will be subject to all other terms, provisions and conditions of this Lease except any right of renewal and nothing contained in Article 13.01, 13.02 or 13.03 will be construed to limit or impair any of Landlord’s rights of re entry or eviction or constitute a waiver thereof.

[OHlandlord]

Aha! I understand now. The law you posted (I assume it is your state law) is specific to your state. We do not have such a law on the books of my state. After reading this law, you do wish to give them notice that they are holding over and charge them the double rent. But don't be surprised if they don't give you immediate notice that they will vacate in 30 days. As soon as they do, start advertising the unit for rent. Good luck!

[Elaine Brooks]

I guess I should clarify - I'm from Vancouver, British Columbia, Canada.
I wouldn't think our laws in most cases to be that different. I appreciate your input and have enjoyed our conversations thus far.
Will let you know how it turns out - in the meantime, have a Happy Holiday!

[OHlandlord]

Thank you Elaine. I look forward to your (hopefully good) update. Here's wishing you Merry Holidays also.

[Elaine Brooks]

Aha! I understand now. The law you posted (I assume it is your state law) is specific to your state. We do not have such a law on the books of my state. After reading this law, you do wish to give them notice that they are holding over and charge them the double rent. But don't be surprised if they don't give you immediate notice that they will vacate in 30 days. As soon as they do, start advertising the unit for rent. Good luck![/quote]

Happy New Year! Thought I would bring you up to date with my issue. We chose to write the Tenant and advise they are a tenancy at sufferance and to pay double rent dated back to Oct 1/07. Their lawyer replied that Mr. X was the principle of XX which was the tenant for the premises and franchisor of XXX. The premises were subleased (with the landlord's consent) to a subtenant/franchisee. Sometime in December, we understand that the two parties agreed that XX will not renew the lease, and that the subtenant/franchisee will be free to negotiate a new lease with the landlord provided that they cease to use the name XXX. Accordingly, the lease with XX expired and it is the subtenant who is the tenant at sufference. We should contact the subtenant to renew.
Landlord has been accepting rent from the subtenant since the lease and sublease expired Sep 30/07.

Who do you think is responsible to pay the additional rent? Do we have the right to go after the subtenant as a tenant at sufference- their subtenant agreement expired same time as the tenant; the subtenant still occupies the space and we accept their rent, however, there is nothing in writing to the subtenant thus far. I'm hoping you might have some insight here.

I've been advised to respond to the Tenant acknowledging and accepting that their is no longer a lease; and to send a letter to the subtenant offering them to sign a short term agreement (30 day out clause) but at a much higher rate dating back to Oct 1/07. The request for a higher rate is fair considering they have only been paying % rent.
The Landlord wants control of the space, but needs to buy some time until they can find a more suitable tenant.

Hope you have the time to respond....

[OHlandlord]

In my state, when a tenant subleases the space, the tenant is still responsible for all of the obligations under the lease. His subtenant is responsible to him and he is responsible to you. Did you sign a lease or any paperwork with the sub-tenant? If this were in my state, I would inform the tenant that his subleasee had held-over the terms of the lease and that he (and in return, they) are now tenants at sufferance and are responsbile for the penalties of such as provided by (your) law.

Here, the tenant is actually the landlord over the subtenant. I would only screen the sub-leasing applicant and check for suitability. If the sub-tenant fails to fulfill the obligations under the lease, the tenant is still responsible for the terms of the lease. This is true if it is subleased with or without the landlord's consent. You should check the law there to see how it addresses sub-leases.

Now if the lease is listed "assigned" and not "subleased", the new tenant is the one responsible for all obligations of the lease and the original tenant is relieved of any responsibilities. Check for these terms in your area laws. Also, is this commercial space? Different laws prevail over commercial space than residential.

I would at least contact the person who is in the rental space now and inform him that as of 30 days from now, their rent will increase to $XXXX. (Here if they have no lease I can increase the rent with only 30 days written notice.) This will probably get the subtenant to contact you immediately. You may then renew a lease at terms favorable to you or write a month to month agrement for the tenant at your new rent level.

One last thought...if the lease expired in October, why wasn't this addressed immediately at that time?

[Elaine Brooks]

The same rule applies with us in Canada. The tenant who subleases the space is still responsible for all of the obligations under the lease and the subtenant is responsible to the tenant (his landlord) and to us. We didn't sign anything directly with the subtenant, but we did consent to the tenant subleasing. We did inform the tenant that his sublessee had held-over the terms of the lease and that he is a tenant at sufferance, but we did not state the sublessee was too. The subtenant is not yet aware that they are obligated to fulfill the obligations under the lease "in this regard"; and the tenant, even though they are still responsible for the terms of the lease, has specified they are not and that the subtenant is.

The lease has attached as a schedule, the sublease agreement. This is a retail commercial space. We manage both a shopping centre and an office tower.

The subtenant has tried to enter into a new lease with us, however, they were put off because we hadn't heard anything from the tenant who was difficult to contact. The subtenant knows that if we agree to enter into a new deal with them that the rent would be increased. I will have to find out, that since there is no lease in place can we go after the subtenant dated back to Oct 1/07 or if we are restricted by our laws to give 30 days notice from now.

In response to your last thought...the issue wasn't addressed at the time when the lease expired in October because the property had just been purchased with change of property management and understaffing at the time. It went by unnoticed until December at which time I proceeded to contact the tenant.

Once again your input has been most helpful.

P.S.: I noticed a red ribbon beside your name - may I ask what it represents?

[OHlandlord]

Good question about the ribbon. I didn't place it there that I know of. (If I did it must have been accidental.) When I try to click on it, it just says "award". I have no idea!