Legal Memorandum: Hold-over Tenant and Calculation of Rent

Issue: Under Minnesota law, what distinguishes a hold-over tenant from a lawful occupant without a lease and how do courts calculate rent in each situation?

Area of Law: Real Estate Law
Keywords: Holdover tenant; Holdover rent
Jurisdiction: Minnesota
Cited Cases: None
Cited Statutes: None
Date: 01/01/2010

Restatement (Second) of Property—Landlord & Tenant § 14.4 states:

Except to the extent the parties to a lease validly agree otherwise, the landlord . . . may elect, solely on the basis of the tenant’s improper holding over after the termination of his lease, unilaterally to hold the tenant to another term, unless equitable considerations justify giving the tenant an extension of time to vacate the lease property and the tenant vacates the leased property before the end of the extended period.


Restatement (Second) of Property—Landlord & Tenant § 14.4 (1977/2009). 

Comment j to § 14.4 distinguishes true holdovers from cases in which the landlord and tenant are in the process of negotiating a new lease, or the tenant has remained on the premises with the landlord’s consent.  See id. at cmt. j.

In addition, § 14.2 comment g, relates to “[c]ircumstances giving rise to the duty to resort to judicial process for the recovery of possession.”  The comment provides that a “landlord . . . must resort to the speedy judicial remedy rather than self help to recover possession of leased property” when, at the end of the lease term, the tenant leads the landlord

reasonably to expect that the tenant intends to deprive him of free access to the leased property or any part thereof.  If the acts of the tenant . . . are ambiguous, the landlord . . . is under a duty to inquire of the tenant as to his intentions before taking any action.