As a property owner, you’re liable for the people who call your property home. That’s why you carefully screen each potential tenant and then write up a lease agreement explicitly defining the residents. But when a guest crosses the territory from temporary visitor to ongoing occupant, what do you do to recognize the situation and maintain control?
The Difference Between a Tenant and a Guest
In most basic terms, a tenant is the person (or people) who pay rent to live on your property. This is who you are leasing the rental to, naming on the lease, and obligating to uphold the responsibilities in the lease (e.g. paying rent on time, compliance with laws, appropriately caring for the property, etc.). Basically, any adult over the age of 18 who is living in the unit. However, even if a name is not listed on the lease and they are paying rent, they can be considered a tenant.
A guest is a person who visits occasionally, and maybe sleeps over a few times in a given period. A guest is not listed on the lease, and is not responsible for paying rent or upholding other obligations in the lease agreement.
Recognizing When a Guest Has Taken Up Residence
The gray area is home to those long-term guests who have moved into your rental without your permission. Some ways to spot these guests-gone-rogue include the following:
- Guests pay rent: Whether the guest has a verbal agreement to you and has offered to pay a portion of rent or cover part of utilities, this makes the guest a tenant. When money changes hands, you and the resident are entered into an informal landlord-tenant agreement.
- Guests receive mail at the address: If a guest is getting letters and packages at the property, this is a sign of someone who has moved in. Even if this person spends time at another place, but is receiving mail at your property, this is evidence you can present.
- Guests who spend each night: Someone who regularly sleeps at your place is no longer a guest. A way to spot this is through the use of security cameras or by seeing if the guest leaves their car parked at the residence overnight. If parking is included in the lease agreement, you know which vehicles and plate numbers are allowed on your property. However, frequent daytime-only visitors qualify as guests.
- Guests who move in furniture: This person has set up shop. Keeping a significant amount of personal belongings, furniture, and even pets at your rental indicates residence.
- Guests who have a key: However this guest got a key, whether they were given the spare or legally (or illegally) duplicated the key, and are spending nights makes them more tenant than guest.
If you’ve noticed these behaviors in an occupied unit, it is likely you have a long-term guest who’s turned into a tenant. However, below are examples of the same kinds of people in different situations, where one may be considered a guest and one may be considered a tenant.
- College students visiting for a weekend or spring/winter breaks, but who always return to school.
- A boyfriend or girlfriend, or just a friend, who stays a few nights a month or visits frequently during the daytime.
- Parents visiting to take care of a new child, or to stay a few weeks after receiving medical care.
- A nanny or hired help who works during the day, and may occasionally stay over.
- College students home for the summer. College students who dropped out of school and aren’t returning after a break. Recent graduates returning home for an undefined amount of time to get on their feet.
- A boyfriend or girlfriend, who spends most nights in the unit, often for weeks at a time. A friend who doesn’t have somewhere to live and has been apartment hunting for a month.
- Parents who move in because they no longer take good care of themselves on their own.
- Live-in help, like an au pair.
If you’ve noticed the same behaviors above in a vacant unit, you could have a squatter on your hands. It’s important you take actions to address both long-term guests and potential squatters immediately to prevent more serious legal issues down the road. And preventative action is even better.
Writing The Tenant Guest Policy in the Lease Agreement
When writing the guest policy in your lease, you should consider the following points regarding visitors:
- The maximum number of residents living in the space
- What kinds of guests you allow (e.g. specifying that only friends or relatives of the existing tenants may occupy the space without your consent, meaning strangers—subletters or guests from Airbnb—are prohibited)
- How many guests you will allow in the space at one time
- How many nights a guest can stay on the property within a specified period
- How many consecutive nights a person can spend
- How you want to handle guests who stay longer than the allotted time (e.g. evicting the tenants who violate this portion of the lease or adding long-term guests to the lease as tenants)
As the property owner, you also get to decide the maximum occupancy of the unit. How many people do you feel comfortable living in the space? If there are five bedrooms, but you’d prefer to only have four occupants in the space, that’s totally acceptable. If there are two bedrooms, but you’re fine with having tenants share a room, you can state the maximum occupants as three. Note: Most municipalities have occupancy laws that stipulate how many people can live in a space based on square footage. However, this includes total square footage of the unit, including the living room, kitchen, bathrooms, etc., so unless you suspect a bunch of people are regularly crashing on the couch of your rental, it’s unlikely they’re breaking occupancy laws.
You also get to define at what point a guest overstays their welcome. Most landlords allow guests to stay over no more than 10-14 days in a six month period. From there, you can decide whether a guest staying 15 days or longer gives you grounds to evict the tenants for breaking the lease, or whether you want to amend your lease, and if the rent will increase as a result.
For example, you can adjust the language below to begin with:
Guests may stay a maximum of 14 days in a six-month period or 7 nights consecutively on the property. Any guest residing at the property for more than 14 days in a six-month period or spending more than 7 nights consecutively will be considered a tenant. This person must be added to the lease agreement. Landlord may increase the rent any time a new tenant is added to the lease.
However, we recommend customizing your lease in a way that protects your property, rather than falling into the trap of using a standard lease agreement. Consult with your attorney as well so you can prevent any issues before they begin.
When bringing in new tenants it’s important to establish a good landlord-tenant relationship from the start of the lease. This way you can be clear with the rules of your property and explain the consequences of breaking them, as well as open the channels for communication.
Talk to the Tenant to Revise the Lease Agreement
If you find that a guest has violated a part of your lease agreement, it’s necessary to confront the tenant and take action as soon as possible. You can offer the option to amend the lease, as outlined in your guest policy and get the opportunity to renew the lease at a higher rate and for a longer term. When it comes to increasing rent, be aware of your local jurisdiction’s laws surrounding the matter. If you’ve successfully created a positive landlord-tenant relationship, you should be able to talk this out freely.
As a landlord, it’s important to have any adult occupants on the lease. This is so you can guarantee their obligations to uphold the lease as well so you can know who is living on your property. This protects you legally if they were to violate a portion of the lease.
If you choose not to amend the lease, you can order the guest to vacate or stay over less frequently to abide by the lease. Otherwise, your option is to serve the tenant with a violation notice and threaten to terminate the agreement with eviction. If you choose this route, you must also provide written notice to the renter(s) of their eviction with the lead time governed by the state as well as bring in an attorney.
Why You Should Not Accept Rent From Guests
As mentioned before, you can find yourself in a problem if you start to accept rent from a non-tenant. This enters you into a landlord-tenant agreement, even though they’re not specified in the lease. Rent is typically money, but can also be a service performed, such as maintenance labor. By accepting money (or a service equivalent), the guest can be granted the same rights as a tenant on the lease and will be harder to remove. It’s important to note that even if the money has not yet changed hands, but you’ve agreed to accept money, you still enter into that agreement.
In this situation, you have a legal tenant on your hands, but not the paperwork to back it up. Therefore, if you try to evict the guest, or the tenants who brought in the guest, you’ll end up with an uphill legal battle involving landlord-tenant law because of the rights they’ve gained in paying you. In our resource about tenant evictions, there are three main reasons you can evict a tenant:
- If a tenant fails to pay rent
- If a tenant poses a health or safety risk to a property and/or other renters at a property
- If a tenant breaks the terms of a rental lease agreement
This gets dicey because you’ve basically forfeited your options. You can’t prove if a guest-gone-tenant fails to pay rent if you never amended the lease to include them. Unless there is a health or safety risk to the property by allowing them there, you also don’t have legal grounds to evict. Again, by not amending the lease, you haven’t required the guest-gone-tenant to complete a background check, so you don’t know what kind of risks they might pose to the rental or community. Finally, the tenants living in the unit with the guest-gone-tenant have no longer broken the terms of the rental agreement because you have accepted payment.
Prevent the Problem Before It Happens
The best way to handle sticky situations where guests overstay their welcome is to be proactive. Clearly define your guest policy in your lease and create open communication with your tenants. Tenants might come to you asking for permission to allow a long-term guest for a temporary period. If this is something you’re okay with, be sure to create and have them sign a long-term guest agreement. If things do get tricky, landlord-tenant law is very complicated and varies widely by state, so you want to make sure you (or an attorney you work with) are well versed in the guidelines that govern guests, notices to quit, rent payments, and definitions of tenants.
Periodically check on your property as well. Use security cameras to monitor who’s coming and going. Most jurisdictions allow a property owner to enter a unit after giving the residents a minimum of 24 hours’ written notice. If the rental is vacant, visit the property once a year, or every few months if you can, to combat squatters moving in. For a squatter to take possession of the property, they have to be living on it for an uninterrupted number of years designated by your jurisdiction.