A tenant who continues to occupy leased premises after expiration or termination of its lease is a holdover tenant. The status and rights of a holdover tenant, however, differ depending on whether the tenant becomes a tenant at will or a tenant at sufferance.
A tenant at will is a holdover tenant who holds possession with the landlord's consent but without fixed terms (as to duration or rent). Because tenants at will remain in possession with their landlords' consent, their possession is lawful, but it is for no fixed term, and the landlords can put them out of possession at any time.
By contrast, a tenant at sufferance is a tenant who has been in lawful possession of property and wrongfully remains as a holdover after the tenant's interest has expired. The defining characteristic of a tenancy at sufferance is the lack of the landlord's consent to the tenant's continued possession of the premises. With the owner's consent, the holdover tenant becomes a tenant at will; without it, a tenant at sufferance.
A lease agreement may provide that its terms continue to apply to a holdover tenant. But if the lease does not address the issue, and if the parties do not enter into a new lease agreement, the parties' conduct will determine whether the holdover tenant becomes a tenant at will or a tenant at sufferance. Under the common law holdover rule, a landlord may elect to treat a tenant holding over as either a trespasser—that is, a tenant at sufferance—or as a tenant holding under the terms of the original lease—that is, a tenant at will.
Thus, an implied agreement to create a new lease using the terms of the prior lease may arise if both parties engage in conduct that manifests such intent. If the tenant remains in possession and continues to pay rent, and the landlord, having knowledge of the tenant's possession, continues to accept the rent without objection to the continued possession, the tenant is a tenant at will, and the terms of the prior lease will continue to govern the new arrangement absent an agreement to the contrary.
The mere fact that the tenant remains in possession, however, is not sufficient to create a tenancy at will; unless the parties' conduct demonstrates the landlord's consent to the continued possession, the tenant is a tenant at sufferance.
In Texas, a holdover tenant is someone who remains in a rental property after their lease has expired. If the landlord consents to this continued occupancy without a fixed lease term, the tenant becomes a tenant at will. This means the tenant can stay on the property lawfully, but the landlord can terminate this arrangement at any time without notice. Conversely, a tenant at sufferance is one who stays without the landlord's consent after the lease has ended. This situation is not lawful, and the tenant has no right to remain on the property. If the original lease does not address holdover situations and no new lease is agreed upon, the landlord's actions (such as accepting rent without objection) can imply consent, creating a tenancy at will under the terms of the original lease. Without such conduct indicating consent, the tenant is considered a tenant at sufferance. Texas law allows landlords to treat holdover tenants as trespassers or continue the lease terms, depending on whether they accept or object to the tenant's continued possession.
