What is a Tenancy at Will?
“A tenancy at will is an estate which simply confers a right to the possession of premises leased for such indefinite period as both parties shall determine such possession shall continue. The tenant at will is in possession by right with the consent of the landlord either express or implied, and he does not begin to hold unlawfully until the termination of his tenancy. His estate is a leasehold and he holds in subordination to the title of the landlord.” Covina Manor, Inc. v. Hatch (1955) 133 Cal. App. 2d Supp. 790, 792–93.
The relationship is deemed to be “at will” because, there being no stated term or rent payment provision, it is terminable “at the will” of either party (usually, the landlord’s will). See Covina Manor, Inc. v. Hatch (1955) 133 Cal. App. 2d Supp. 790, 793.
Further, a tenancy at will may also be terminated by either party’s death or incapacity. See Civ. Code § 1934; Miller & Desatnik Mgmt. Co., Inc. v. Bullock (1990) 221 CA3d Supp. 13, 17; Dugand v. Magnus (1930) 107 Cal. App. 243, 249.
Examples of Tenancy at Will
One example of a tenancy at will occurs when a tenant who is in possession with the permission of the owner under an oral contract, which is unenforceable under the statute of frauds. Carteri v. Roberts (1903) 140 Cal. 164, 165-67. A tenancy at will may also be created when someone enters possession pursuant to a written lease that is never executed. Linnard v. Sonnenschein (1928) 94 Cal.App. 729, 733-35.
Simply put, someone who has no lease and occupies the premises with the owner’s consent is a tenant at will. Ellingson v. Walsh, O’Connor & Barneson, et al. (1940) 15 Cal.2d 673, 675-76; Miller v. Elite Ins. Co. (1980) 100 Cal.App.3d 739. Further, a tenancy at will exists where both owner and tenant live on the property under an implied agreement that both had the right to possess the property jointly. Daluiso v. Boone (1969) 71 Cal.2d 484, 501.
In all of these situations, the relationship between the landlord and the tenant creates a tenancy at will. These relationships begin on great terms. They may sour, however, when the landlord attempts to regain possession and the tenant refuses to see their free homestead disappear without a fight.
Tenant at Will Eviction Procedure
A tenancy at will may be brought to an end when the landlord attempts to sell the property, a court may order the sale of the property, the owner/landlord may have passed away creating a change in ownership through probate, a change in ownership pursuant to a sale of the property in bankruptcy, or that pesky significant other will not leave during a messy break up. A landlord may not simply place the tenant’s belongings on the street as she pleases because a Tenant at Will does have certain rights when the landlord tries to evict the tenant from the property. Thus, a specific procedure must be followed to successfully evict a tenant at will.
Tenant at Will Rights – Serving a Tenant at Will With 30-Day Notice to Quit Tenancy
California’s Civil Code Section 789 lays out the procedure to abide by when evicting a tenant at will as follows:
A tenancy or other estate at will, however created, may be terminated by the landlord’s giving notice in writing to the tenant, in the manner prescribed by Section 1162 of the Code of Civil Procedure, to remove from the premises within a period of not less than 30 days, to be specified in the notice.
California Civil Code § 789. Thus, in order to evict a tenant at will, the landlord must first serve a written notice to quit tenancy within a period of not less than 30 days. This notice must be served in accordance with California Code of Civil Procedure section 1162.
Tenant at Will Unlawful Detainer Action
After successful service of the notice to quit tenancy and after waiting the period prescribed in the notice to quit, then the landlord must institute an unlawful detainer proceeding to evict the tenant at will should they refuse to move out during the period prescribed in the notice to quit.
The landlord must use the California Court forms required to be filled out to file and litigate an unlawful detainer action. The forms must then be served according to California service of process laws prescribed in California Code of Civil Procedure, section 413.10, et seq.
After service is completed, then the tenant has five days to file a response with the court. The tenant who timely files a response must then serve the response on the landlord. The response is then followed by a trial on the merits of the case. The court renders a judgment on the filings after a trial. If the judgment is in favor of the landlord, a court will issue a writ of possession in order to allow the landlord to obtain possession of the premises pursuant to the court order. After the writ of possession is executed, then the tenancy at will is terminated.
Contact an Experienced Real Estate Attorney Today
If you are experiencing issues with a tenant at-will, know that you are not alone. Removing a tenant at will requires careful legal action that can be best implemented by an experienced real estate litigation attorney. The real estate attorneys at Talkov Law have years of experience handling complex real estate matters, included tenancy at will. For a free, 15 minute consultation, contact Talkov Law at (844) 4-TALKOV (825568) or online.
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