Definition
A tenant at will is a person who holds possession of land or premises with the landlord's consent, but under an arrangement that either party may terminate at any time, without notice at common law and with statutory notice under modern rules. The tenancy exists so long as both parties consent; the moment either the landlord or the tenant acts to end it—or either party dies, or the landlord conveys the property—the tenancy terminates. No fixed term defines the relationship. The tenant comes into possession lawfully and continues lawfully, but the estate is entirely precarious, dependent on the ongoing mutual will of the parties.
This is distinct from a tenancy at sufferance, where a former tenant wrongfully holds over after a lawful tenancy has expired. The tenant at will holds by the landlord's present, active permission; the tenant at sufferance holds by no permission at all—only by the landlord's failure to act.
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Common Language
Wiktionary: "One who holds lands at the will of the owner."
The common definition is accurate as far as it goes but omits a critical reciprocal element. Modern law in most jurisdictions treats the tenancy at will as terminable by either party, not solely by the owner. The phrase "at will" suggests the landlord's unilateral power, and historically that reading had force. Today, the relationship is generally understood as bilateral: the tenant may also quit at will. The common definition also gives no signal of the statutory notice requirements that have substantially modified the common law rule in nearly every U.S. state and in England.
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Common Confusion
TENANT AT WILL vs. TENANT AT SUFFERANCE: These two estates are the most commonly conflated in older property materials, and Burrill's own entry compounds this by defining them in close proximity. The distinction is lawful permission. A tenant at will has the landlord's current consent to be on the premises. A tenant at sufferance has no such consent—they were once lawful tenants but held over without permission after their term expired. The practical consequence is significant: a landlord may treat a tenant at sufferance as a trespasser or, in most jurisdictions, elect to hold them as a periodic tenant. A tenant at will is owed whatever notice the applicable statute requires before eviction proceedings may begin.
TENANT AT WILL vs. MONTH-TO-MONTH TENANT: In practice, many tenancies that begin as tenancies at will become month-to-month (periodic) tenancies once rent is paid on a recurring basis. Courts frequently imply a periodic tenancy from the pattern of rent payment, converting what was an at-will arrangement into one requiring notice equal to the rent period. Researchers should not assume that a tenancy described as "at will" in older documents remained so after rent payments commenced.
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Why It Matters in Research
The tenancy at will is a conceptually simple estate that has been substantially reshaped by statute, making it one of the more treacherous areas for researchers relying on historical materials.
At common law, no notice was required to terminate a tenancy at will. Blackstone and Littleton both treated immediate termination as the landlord's right. That rule is now largely abrogated. Most U.S. states require statutory notice—commonly 30 days—before a landlord can terminate a tenancy at will, and some jurisdictions require cause. Researchers reading 18th or 19th century materials should not assume those procedural rules apply in contemporary disputes, and vice versa.
The terminability-by-death rule is another common law feature that modern law has modified or ignored in practice. At common law, the death of either party terminated the tenancy at will automatically. Modern leases and statutes rarely preserve this rule intact, and it seldom appears in contemporary landlord-tenant litigation.
For corpus research, note that the term "tenant at will" appears frequently in early American property treatises and conveyancing manuals as a term of art with precise technical content. In modern residential landlord-tenant statutes, the same relationship is often described in functional terms—"month-to-month tenancy," "holdover tenancy," or "tenancy without a fixed term"—without using the phrase "tenant at will" at all. Cross-searching both the historical and modern vocabularies is essential to track a single legal relationship across time.
The foreclosure context adds another layer. Following the 2009 Protecting Tenants at Foreclosure Act (PTFA) and its permanent reenactment in 2018, tenants at will—who previously had the weakest claim to continued possession upon foreclosure—received a federal floor of protection. This intersection of an ancient common law estate with modern federal consumer protection law is easy to miss when researching either topic in isolation.
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Historical Dictionary Support
Burrill draws directly from Littleton (sect. 68), Blackstone (2 Bl. Com. 145), and Kent (4 Kent's Com. 110)—the three foundational Anglophone property authorities. His core definition is reliable and tracks the standard common law formulation: a tenant holds at the will of the lessor, and the estate is terminable at that will. The framing is landlord-centric, consistent with the period.
Burrill's placement of the tenant at sufferance definition immediately following the tenant at will entry reflects a convention common to 19th century property dictionaries: the two estates were treated as the lowest and most precarious forms of tenure, suitable for compact joint treatment. Researchers should not read that proximity as suggesting the estates are interchangeable; Burrill himself quotes Kent and Blackstone on the distinction.
What Burrill and his contemporaries do not address is the statutory transformation of notice requirements. The common law world they describe—in which a landlord could demand immediate possession from a tenant at will—had already begun to erode by the mid-19th century and has been thoroughly displaced in modern practice. Neither does Burrill anticipate the bilateral character that modern courts and statutes have given the estate. Historical dictionary sources are authoritative on the doctrinal skeleton of the tenancy at will; they are not reliable guides to its current procedural operation.
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Jurisdictional Note
Notice requirements for terminating a tenancy at will vary by state, ranging from 30 to 90 days in most U.S. jurisdictions, with some states requiring just cause for termination of residential tenancies. In England and Wales, the common law tenancy at will survives primarily in commercial property contexts, where it often arises when a lease has expired and parties are negotiating renewal terms. Researchers working across jurisdictions should treat any assumed notice period as unverified until confirmed against the applicable statute.
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Encyclopedia Cross-Reference
The Law Mind Property Law Encyclopedia:
- Landlord-Tenant — Tenant's Rights Upon Foreclosure (Protecting Tenants at Foreclosure Act) [property_34]
- Landlord-Tenant — Tenant's Duty to Pay Rent [property_20]
- Landlord-Tenant — Constructive Eviction [property_23]
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