When Does a Guest Become a Tenant?
Written on June 6, 2016 by Jimmy Moncrief, updated on December 9, 2016
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
Other Considerations
- 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.
Related:
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!
Topics: Evictions, For Landlords, Leases & Legal, Move-in/Move-out
About Jimmy Moncrief
Jimmy is a multifamily real estate investor and bank credit officer. He has written a complimentary bank negotiating guide on how to get around the 80% LTV rule which can be found at http://realestatefinancehq.com/
214 Comments
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Wilma Bennett
Im a sr. Own mobile on leased lot for over 20 yrs who’s adult daughter and m y 2 grandkids almost 8& 9 have resided for almost 7 yrs.We paid fee for background & finance check then & passed.Eviction for 14dayguest overstay! No notices & refuses to let her be on lease.” No 2 yr current rental hist]ory! Help
Robert
My girlfriend and I were recently confronted by her landlord he served her with an eviction notice stating that she violated her lease by moving me in without their permission I visit my girlfriend on a daily basis I don’t sleep there but according to the landlord due to the fact that I am occupying the building using utilities such as water and electric that they consider me living there it never was brought up by her landlord as to how long I actually visit each day we try to explain that I only visit everyday but her landlord is persistent and tells us they know better I really don’t see how they can accuse someone of something based on what somebody may have told them without proof and just because I occupy the building during visit
Steven Turner
My tenant is the only person on lease, when school was out on June 27th. Her 2 kids age 15&14 moved in and have stayed every night. What is the next step to evict her?
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Annie Borden
why would you evict her? Just write a new lease with the children on it. You can’t increase her rent because the children are 18.
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Ann Borden
sorry I meant the children are not 18
Paula
Why would you evict a mother because her kids moved in? Sorry, but that’s a dick move! Ffs, they’re her kids 🙄
K. Thaggard
I have a good tenant who has met a man online from S. Africa. She is planning to bring him here and let him live with her for the 6 month visitors visa as he has no money. I realize that if he stays more than 14 days he becomes a tenant and I need to add him to the lease. However, he would not pass the background checks I do for tenants, has no prior rent history for me to check, has no employment history for me to rely on. I know he has no money and is living there by her generosity. Do I just have him sign the lease and call it a day? Do I tell her he cannot stay longer than 14 days or she has to move or I will evict her? What do you recommend in the case of an out of country “visitor”?
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Anonymos
If it effects you buy your expenses going uo whether it be water, gas, electric. all all of the above, just ask talk to her and explain that during his stay you have to raise her rent by such and such what ever amount you deem is reasonable and im sure she will understand, also on any future lease, you should put a clause on the lease that states ” Any guest stayimg longer than 2 weeks is no longer a guest and is considered a tenant, and during that opersons staty the lease holder being her is subject to (what amount you deem proper) per each individual that stays on the premisis.
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Kathy
Thank you for your response! I did talk to a lawyer and have come up with an addendum to her lease that basically puts him on as a tenant but with a week to week lease so that I can evict him sooner than I could if he was month to month. Both he and she will sign it and become a true tenant. This week to week lease can be terminated with 7 days notice by either party and he is bound by all other terms and conditions of her original lease. I am hoping this will at lease reduce my risk and hers should this guy not work out. This is not so much about charging more money for the rental but getting him out quickly if he becomes a nuisance or problem. If anyone would like to see my addendum, i am happy to share.
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Linda Craig
Yes I would love to see that ! I never thought of a week to week . Great way to end the lease if the new girlfriend is a problem!
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Kathy
I don’t know how to send it to you. I haven’t had feedback from my lawyer on the exact wording I came up with yet. He might tweak it a bit. How do I show it to you without putting my email out here for everyone to see?
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Linda
Good question lol I don’t know the answer it doesn’t appear you can add a pic on here sadly I would say only way is to type in the verbiage he used on here !
Kristina Marsh
Can a landlord legally say that you are not allowed to have any overnight guests in the state of Ohio ?
Patrick Dalton
if my niece is coming to visit me for a prolonged period of time, but does not pay me rent, is she a tenant or a guest?
pat
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Annie Borden
how old is your niece?
Michael C Makabeh
I have a friend who bought a house in California at discount due to the fact that there was transient living there for 2 years. The owner died and the family did not do anything except try to sell it 2-3 years later.
What are the choices?
Can he claim he was authorized to live there ?
Or create a fake lease?
what is teh best method to remove him .
Best ,
Michael-
Annie Borden
Do you own the house?
Dan
My brother seen I fell on hard times and said for a hundred a month stay w my family, after two weeks he said be gone at the end of the month, I have a rm in his basement I have my own frig and my dog I pay rent fixed his dryer saved him 500 dollars so he said two more weeks I also paid more rent, then leave in a WK, so I said I’ll pay a hundred wkly so it’s been 49 days that I’ve lived here, then he said be gone tomorrow I guess I didn’t leave fast enough so he called the police knowing the law I told him a mistake, the officer said he pays rent has a text saying 3 months he saved you a ton by fixing your dryer has a rm pays for his food for approx two months and you want him gone in a day. I was told you are a tenant he has to evicted you
rick scarlett
I have 3 rv spots I rent in-order to make ends meets. no written lease, all were told they were guest and there quest pass could end at any time. I ask that they make contribution to my bills so they each pay $500 and they cover there own power witch is metered and there unit. one quest has decided to stop making contributions and not pay there power there rv also leaks sewage and is falling apart. they have brought back a bunch of stuff now surrounds there rv. it looks totally trashy. what can i do to get them removed. I can move it myself down the road but will I get in trouble? they are creating quite a nuisance down where my other two quest are. the other quest can’t turn around at the site because of there junk.
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Lourdes
I was leaving with my friend in 3bedroom apartment but she’s the only one on the lease is there anyway can landlord fine me if he findOut that I was leaving with my friend pla help
Sam
My boyfriend has stayed over like maybe 10 nights when I first moved in to my new place to help me clean and move now my landlord is saying he did a online background check and found he uses women and stuff which I did one myself never found anything like that on any site I checked and my landlord can’t tell me what site he used but is now saying he doesn’t even want him to visit can he do that
Sam
My boyfriend has stayed over like maybe 10 nights when I first moved in to my new place to help me clean and move now my landlord is saying he did a online background check and found he uses women and stuff which I did one myself never found anything like that on any site I checked and my landlord can’t tell me what site he used but is now saying he doesn’t even want him to visit can he do that I mean he’s never done any damage or anything I’m just curious if he can do that I live in Illinois
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