Tenancy at Will
| Tenancy at Will |
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Tenancy-at-will - this is a special form of a tenancy agreement which can be terminated at any time by either party to the legal relationship. Moreover, an important feature of such a transaction is the fact that it operates without any formal contract and does not usually characterize the duration of the tenancy or the form of payment for the provision of the premises. Alternatively, it's called estate-at-will. It is a convenient form of contract for both the landlord and tenant because it allows for easy modification of the contract terms without the risk of breaching the contract. The contract in question is usually concluded orally or in documents. However, the lack of formalization does not mean that the tenant or landlord is not entitled to special legal protection. They can still use a legal institution such as a notice to vacate or a claim for damages for misuse of the premises.
Tenancy-at-will essence
Tenancy-at-will is a phenomenon where there is a common agreement between the tenant and the landlord for the tenant to occupy the property. Furthermore, they agree that both landlord and tenant are able to terminate the contract at any time. In other words, it is the tenant who occupies the property in order to satisfy the wishes of the landlord [1].
It is worth mentioning that tenancy-at-will is not much different from a regular tenancy. For example, in the event of a change of landlord, the new landlord is responsible for the last rent and deposit due. This is due to a pure civilistic scheme, which provides for an automatic transfer of claims for the subject matter of the contract. Therefore, if the subject matter of the contract is real estate (and not specific behavior, the same for a specific entity), then the new landlord can be held accountable for a previous due liabilities [2]. Therefore, as an alternative for a tenancy-at-will it is possible to choose:
- occasional lease
- long-term formal tenancy agreement
- formal tenancy agreement
Compensation rights from tenancy-at-will
Tenancy-at-will as a special legal form of tenancy of a dwelling is mainly governed by common law - i. e. precedent law. Established jurisprudence and practice over decades of lawmaking are the main basis for the enforcement of any claim for inadequate provision of benefits. Therefore, all requests should be demonstrated directly to the landlord or tenant so that they become effective.
However, when a court dispute arises, the parties are entitled to all the institutions provided for in civil proceedings. They may appoint witnesses to prove the validity of their performance and of the contract terms. However, the legal protection of such a legal relationship is limited and confines itself to the application of the general clauses provided for in substantive civil law.
In order to obtain a valid, legally effective tenancy agreement, which is a tenancy-at will, you must first of all agree on all the conditions that are necessary for a normal tenancy agreement. Thereafter, unless either party objects, the agreement can be concluded[3].
This is of particular importance in determining the so-called “acquisitions" of real estate, which was used in good faith by the tenant as the property of the tenant. This is due to the fact that tenancy-at-will very often manifests itself when a landlord implicitly transfers a dwelling for rent and the tenant considers that the property is being transferred to him/her for settlement.
Examples of Tenancy at Will
- Short-term Tenancy: A tenant may enter into a tenancy at will for a short-term period, such as a month or two, without requiring a formal lease agreement. This type of arrangement is popular among students and professionals who are temporarily in need of a place to stay.
- Vacation Rentals: Vacation rentals, such as vacation houses and cabins, are often leased on a tenancy at will basis. This allows the tenant to stay in the rental property for a short period of time and pay a daily or weekly fee rather than a long-term rental agreement.
- Shared Living Arrangements: Tenancy at will can be used in shared living arrangements, such as when two friends decide to rent a single apartment together. In this case, the two parties can enter into a tenancy at will that allows them to move out of the apartment at any time without any penalty.
- Subleasing: Tenancy at will can also be used for subleasing. When a tenant has a long-term lease but needs to move out before the end of the lease, they can sublease the remaining time to another tenant on a tenancy at will basis. This way, the subtenant can move out at any time without penalty, and the original tenant can avoid paying for an unused lease.
Advantages of Tenancy at Will
A tenancy at will has many advantages that make it an attractive option for both landlords and tenants. Here are some of the main advantages of this form of tenancy:
- Flexibility: Tenancy at will allows for more flexibility than a longer-term tenancy agreement. It allows both parties to make changes to the agreement as needed without having to renegotiate the entire contract.
- No Security Deposit: Tenancy at will does not require a security deposit from the tenant. This makes it a much more affordable option for individuals or families who may not have the funds to put down a deposit.
- Lower Monthly Cost: Since tenancy at will does not require a security deposit, tenants may be able to negotiate a lower monthly rent. This makes it easier for tenants to afford housing.
- Easier Eviction Process: Tenancy at will provides an easier eviction process for landlords. Since tenants do not have the security of a longer-term lease, landlords are able to end the agreement more quickly if needed.
- Improved Tenant/Landlord Relationships: Tenancy at will can help to improve the relationship between tenants and landlords. Since there is no formal lease agreement, both parties may be more open to negotiating changes or making modifications to the agreement. This can lead to a better relationship between the two parties.
Limitations of Tenancy at Will
Tenancy-at-will is a convenient form of contract for both the landlord and tenant but it does have some limitations. These are:
- Lack of formalization: Without a formal contract, neither the landlord nor the tenant can enforce any of the agreed upon terms, leaving them both vulnerable to any changes that may occur in the course of the tenancy.
- Uncertainty of Tenancy Duration: Since there is no set duration of the tenancy, the tenant is not sure of how long they are able to occupy the premises, leaving them vulnerable to sudden termination of their tenancy.
- No recourse in case of disputes: Without a formal contract, it is difficult to take any sort of legal action in case of any disputes arising between the parties.
- No protection against rent increases: Since there is no protection against rent increases, the tenant may find themselves paying higher rent than they initially agreed upon.
- No protections against evictions: The tenant is vulnerable to eviction at any time and without any prior notice, leaving them with little protection against it.
Tenancy-at-will is a special form of a tenancy agreement which can be terminated at any time by either party to the legal relationship. Here are some other approaches related to tenancy at will:
- Fixed-term Tenancy - this type of tenancy agreement outlines the terms and conditions of the rental agreement as well as the length of the tenancy. It is a fixed-term agreement between a landlord and tenant, and is often used when a tenant wants a long-term stay in a property.
- Month-to-month Tenancy - this type of tenancy agreement is ideal for short-term rentals. It is similar to a fixed-term tenancy, except that it allows both parties to establish the length of the tenancy and the terms of the agreement on a monthly basis.
- Tenancy-in-common - this type of tenancy agreement allows two or more persons to share ownership of a property. It is a popular option for couples or families who want to jointly own a property, but do not want to be held responsible for any financial obligations incurred by the other tenants.
In conclusion, tenancy-at-will is a special form of a tenancy agreement which can be terminated at any time by either party to the legal relationship. Other approaches related to tenancy at will include fixed-term tenancy, month-to-month tenancy, and tenancy-in-common. Each of these approaches offers different advantages depending on the situation.
Footnotes
References
- Burn, E.H., Cartwright, J. (2011) Modern Law of Real Property Oxford University Press
- Massachusetts Law Reform Institute, (2017) Legal Tactics: Tenants' Rights in Massachusetts Federal Reserve Bank of Minneapolis Research Department Staff Report 494
- Onakoya, O., (2017) Landlords Versus Tenant: A Critical Appraisal of Conflict in Tenancy Law in Nigeria KIU Journal of Social Sciences
Author: Melania Mazur
