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    Is a tenancy at will a lease?

    Is a tenancy at will a lease?

    A customer recently asked if a tenancy at will is the same as a lease. A tenancy at will is not a lease, but in answering that question it became obvious that our visitors might find an examination of each of these tenancy arrangements useful information.

    A lease is a written agreement under which the landlord rents a property to the tenant for a specified period of time and for a specified amount of rent. The parties agree that certain terms and conditions will apply for the duration of the lease, and neither party can terminate the lease before it expires unless the other party agrees to the termination.

    A tenancy at will is a tenancy arrangement under which the tenant occupies property "at the will of" (in other words, with the permission of) the landlord for an unspecified period of time. Both the landlord and the tenant have the right to terminate the tenancy without cause at any time, on reasonable notice (as required by governing law, usually one month). The parties may have either an oral or a written agreement to govern the tenancy.

    Whereas a lease will typically allow the tenant to assign the lease to another tenant with the landlord's consent, a tenancy at will cannot be assigned. It is specific to the tenant.

    There are a number of circumstances in which a tenancy at will might arise, for instance:

    • If the property is being sold by one party to the other, the purchaser may take possession of the property as a tenant at will until the closing of the transaction. Once title has transferred into the purchaser's name, the tenancy at will automatically ends.

    • The tenant needs to move into the property urgently, but the parties haven't had a chance to negotiate a formal lease. As soon as the lease is signed, the tenancy at will comes to an end and the lease takes effect. If the landlord and tenant fail to finalize the lease, the tenant must vacate the premises.

    • The tenant was already a tenant in the property under a formal lease which has now expired, and the landlord has allowed the tenant to stay in the premises and continues to accept rent payments.

    • A family member is living in the premises without a formal lease or tenancy agreement, and may or may not be paying any rent. This situation often arises when an aging parent or parents transfer the title deed to their children and continue to live in the property until they pass or become unable to live on their own.

    A tenancy at will is terminated by operation of law if:

    1. the tenant fails to keep the property clean and habitable, causes damage, or decreases the value of the property through neglect;
    2. the tenant attempts to assign the tenancy;
    3. the landlord sells or transfers its interest in the property;
    4. the landlord decides to live in the property or to lease it to another person;
    5. either party dies.

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