Chapter 8 - § 8.2 • ESTATES LESS THAN FREEHOLD
| Jurisdiction | Colorado |
§ 8.2.1—In General
A tenancy, once created, is presumed to continue for as long as the tenant remains in possession.42
§ 8.2.2—Estates for Years
A tenancy for years is a tenancy for any fixed period.43 The period is not necessarily a number of years, and may even be for less than a year. Thus, an extension of a lease "for the ensuing six months" at a monthly rental is a lease for the period of six months, not a month-to-month lease.44
§ 8.2.3—Periodic Estates
If the parties enter into a lease of no stated duration, a periodic tenancy is presumed for a period equivalent to that for which rent is paid. A month-to-month tenancy is a periodic tenancy in which the landlord-tenant relationship continues each month until one of the parties gives notice to terminate the tenancy. The parties can also expressly create a month-to-month tenancy.45 A tenant whose one-year lease is extended for an additional year does not thereby become a tenant from year to year.46
§ 8.2.4—Estates at Will
The chief characteristics of a tenancy at will are (1) indeterminate duration of the tenancy, and (2) the right of either party to terminate the lease at will.47 But the fact that a lessee has the power to terminate at will does not imply a corollary right on the part of the lessor to terminate at will.48 It has been said that an estate at will is unknown in modern times, unless where created by express agreement of the parties, or by clear implication.49 In Colorado, by statute, any person in possession of real property with the assent of the owner is presumed to be a tenant at will until the contrary is shown,50 and one who is in possession of real property when a patent is issued to another becomes a tenant at will of the patentee.51 A tenancy at will is not real estate.52
§ 8.2.5—Estates at Sufferance
A tenancy at sufferance arises when a tenant wrongfully remains in possession after his or her possessory interest has expired.53 The possession of the premises by the tenant is initially trespassing, but ripens into a tenancy at sufferance upon neglect or laches on the part of the landlord. A tenant at sufferance has no possessory interest in the premises, but only a "naked possession."54 No demand for possession is necessary in order to maintain an action for unlawful detainer.55
§ 8.2.6—Holdover Tenancies
A holdover tenant is one who continues in possession of the premises beyond the term of the lease.56 For the holdover doctrine to apply, the holdover term must be (1) successive, (2) on the same premises and the original lease, and (3) between the landlord and tenant who entered into the lease or a grantee or assignee of either of the original parties.57
If a tenant under a lease for years holds over after the expiration of the term, the tenant holds the premises subject to the covenants and conditions contained in the original
lease. The holding over rests not upon the former lease but upon a new contract, which the law implies to be for the same time, and upon the same terms, as the tenant's lease for the preceding year.58 (A tenant for years who holds over in reliance upon the landlord's promise to construct improvements is not liable for rent for the entire year where the landlord fails to construct the improvements.59 ) This doctrine must be understood with the qualification that the landlord consents to the holding over, by receipt of rents60 or other significant act; otherwise, if the tenant holds over, he or she holds over as a tenant at sufferance.61 A tenant's status as a holdover tenant terminates upon the execution of a new lease.62
When a tenant remains in possession of the premises beyond the expiration of a lease, the landlord may elect to treat him or her as a holdover tenant63 or as a trespasser.64 The tenant may show acquiescence in the landlord's election to treat him or her as a holdover tenant by continuing in possession and rendering rent.65
If the landlord holds the tenant to a continuing term, the length of the tenancy is determined by operation of law.66...
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