New roommates, visiting family, new boyfriends, and live-in nannies are all common scenarios. But when does a guest become a tenant?
What’s the Difference?
There is a thin line between what defines a guest and a tenant. Guests can be a huge liability if they start acting like tenants.
Some landlords would respond by saying “a tenant is someone who is one lease”. While true, this doesn’t account for guests that have taken up residence in your rental without your permission. Built into the tenant’s right of quiet enjoyment, guests are certainly allowed, but rogue tenants are not.
It’s extremely important for any adult occupant who is living there, to be on the lease. Otherwise, there is no legal accountability for them.
Examples of Tenants vs. Guests
|College Kids||Returning home for the summer or because they dropped out||Returning home for Weekends, Spring/Winter Breaks, but always goes back to school.|
|Elderly Parents||Moving in with children because they can no longer take care of themselves||Visiting children for a brief few weeks, or to help with a new child|
|Boyfriend, Girlfriend or Friend||Spending most days and nights there - for weeks/months at a time||Only visiting during the day, no matter how frequent|
|Hired Help, Nanny or Farm Hand||Living on the property||Only on-site during normal business hours|
|Au Pair||Living on the property||By definition, they live with the family, so they will always be a tenant.|
Warning signs that a guest has become a tenant:
- Guests who pay rent
- Guests are receiving mail at the property
- Guests that spend every night at the property
- Guests that have moved-in furniture or pets
- Guests that make maintenance requests
- State laws are different regarding this issue, so be sure to check out Landlordology’s state guides to research this issue for yourself.
- This issue of how long a guest can stay should be addressed in your lease, such as no more than 10-14 days in any six-month period. 14 days should be enough time for any one friend or relative to visit in a six month period.
Should You Add the Guest to the Lease?
Again, it’s extremely important, and an industry best practice, for any adult occupant who is living there, to be on the lease. This is so 1) they are obligated to the lease, and 2) you know who is living there.
Confrontation is Uncomfortable
Most landlords I talk to prefer to ask the current tenant to add the new roommate to the lease. Yes, this is an uncomfortable conversation, but it’s also an opportunity to talk about renewing the lease at a higher rate and for a longer term!
The alternative is to serve the original tenant with a lease violation notice, and threaten to terminate the agreement.
Factors to Consider
Many of the factors that you should consider when trying to convert a guest to a tenant are:
- length of stay;
- existence of a lease or other “special contract for the room;”
- receipt of mail;
- access to cooking facilities;
- degree of control over the space (such as whether the person has his or her own key);
- whether the person has another residence; and
- the extent to which the person has made the dwelling his or her home for the time being
At the end of the day, give it the “Duck Test“:
If it looks like a duck, swims like a duck, and quacks like a duck, then it probably is a duck.
Take Preemptive Action
This whole situation of a guest becoming a tenant is fairly easy to avoid if you have a candid conversation with the current tenant explaining what is and is not allowed. The issue should also be addressed in your lease, and you could even ask your tenant to initial beside the lease portion that addresses this issue.
USE OF PREMISES.
The Premises shall be used and occupied by Tenant(s), for no more than FIVE (5) persons exclusively, as a private individual dwelling, and no part of the Premises shall be used at any time during the term of this Agreement by Tenant(s) for the purpose of carrying on any business, profession, or trade of any kind, or for any purpose other than private dwelling.
Tenant(s) shall not allow any other person, other than Tenant’s immediate family or transient relatives and friends who are guests of Tenant(s), to use or occupy the Premises without first obtaining Landlord’s written consent to such use. Any guest staying in the property more than 2 weeks in any 6 month period will be considered a tenant, rather than a guest, and must be added in the lease agreement. Landlord may also increase the rent at any such time that a new tenant is added to the lease or premise.
Tenant(s) and guest(s) shall comply with any and all laws, ordinances, rules and orders of any and all governmental or quasi-governmental authorities affecting the cleanliness, use, occupancy and preservation of the Premises.
If you accept rent from a guest, you might have initiated a landlord-tenant relationship. If that is true, your new tenant might now have the same rights as any other tenant and will not be easy to remove, as a simple trespasser can.
It’s also a good idea to consult an attorney before the issue actually warrants one. That way, you can proceed with the right course of action as directed by the attorney.
Related: Never Accept Rent from a Non-Tenant
What Others Have to Say
“Depending on the individual state laws with respect to the issue, once someone has started receiving mail at an address they have established residency. That can be done without someone actually occupying a property. If the guest spends more than half a month at a place they could also be considered a tenant at that point as well. Our lease forbids more than 14 nights in a month for anyone not named on the lease for this reason.”
— Brian Levredge, First Property Management
“For us, it’s not a big deal so long as the tenant on the lease still lives there and is current with the rent. We don’t allow our tenants to sublet without written permission which normally involves a new set of paperwork.”
— Aaron Kinney Mobile Home Park Owner
Summary – Prepare, don’t React
This very important issue will probably come up if you are a landlord for any length of time. The time to prepare for this situation is before it happens, not when it is happening.
If you have ever had a guest become a tenant, let me know in the comments how you handled it!