by Krystle Hernandez

Created on: July 05, 2010

In property law, present possessory interests in land are often split into two categories: freehold estates and leasehold estates.  Freehold estates are those that are owned in fee simple, or a variety of other permutations under the law.  By contrast, leasehold estates are those in which an individual has a present possessory interest in land that has been leased for a period of time from the land's "true owner."  Black's Law Dictionary defines a "tenancy" is defined as the possession or occupation of land under a lease. 

There are various forms of leasehold estates including term of years, periodic tenancies, tenancies at will, and tenancy at sufferance.  Although the first three types of leasehold estates are "true" leaseholds in that the tenant and the landlord enter into an agreement regarding their respective rights and obligations, a tenancy at sufferance is really not a tenancy at all.  Instead, a tenancy at sufferance occurs when a tenant extends his or her stay beyond the lease's termination under the provisions of the lease agreement.  The tenant then becomes a "holdover tenant." 

For example, if T (the tenant) leases an apartment from L (the landlord) for 12 months, and ultimately stays 14 months, T will have become a tenant at sufferance.

On the other hand, a trespasser is an individual who intentionally enters another person's property without the owner's consent and without a recognized privilege at law.  Innocent trespassers, however, are individuals who enter another person's land unlawfully (i.e. without a privilege or the landowner's consent) but do so either inadvertently or with the belief that they do have a right to entry. 

Thus, one of the major distinctions between holdover tenants and trespassers is that while holdover tenants initially had a legal right of entry and possession, trespassers, by definition, never had the legal right to enter the true owner's property.  This distinction is the basis for the differences in the ways that holdover tenants are treated under the law versus trespassers.

However, a holdover tenant can ultimately "create" a new form of tenancy if the landlord ultimately accepts payments from the holdover.  Tenancies at sufferance, therefore, can often subsequently take the form of either a tenancy at will, or a periodic tenancy defined by the frequency of the payments the landlord accepts from the holdover.  Theoretically, it could be possible

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