When Does a Guest Become a Tenant?

Written on June 6, 2016 by , updated on December 9, 2016

Guest becomes a tenant 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

 
TENANT
GUEST
College KidsReturning home for the summer or because they dropped outReturning 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 themselvesVisiting children for a brief few weeks, or to help with a new child
Boyfriend, Girlfriend or FriendSpending most days and nights there - for weeks/months at a timeOnly visiting during the day, no matter how frequent
Hired Help, Nanny or Farm HandLiving on the propertyOnly on-site during normal business hours
Au PairLiving on the propertyBy 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

  1. State laws are different regarding this issue, so be sure to check out Landlordology’s state guides to research this issue for yourself.
  2. 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:

  1. length of stay;
  2. existence of a lease or other “special contract for the room;”
  3. receipt of mail;
  4. access to cooking facilities;
  5. degree of control over the space (such as whether the person has his or her own key);
  6. whether the person has another residence; and
  7. 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.

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!

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149 CommentsLeave a Comment

  • Mhoggard

    I am not a landlord, but a tenant who was just trying to help a friend out. She needed somewhere to stay for three weeks. That was the worst decision I’ve ever made. She has been here since Dec. 10th. And she has turned into a nightmare for all of us. She is accusing us of abuse. We have done nothing but be nice to her. She is psychotic and paranoid. She even is harassing the neighbors. And we can’t make her leave. We served her with a 30 day notice which is up in 3 days. It doesn’t look like she has made any effort to move. Oh yeah, and our landlord was in a terrible accident and is in a coma. So she can’t exactly help us out. This is so unfair. And I hear that an eviction can cost an arm and a leg.

  • steven J norris

    I own my home . I’m helping out a friend who just got out of jail by giving him a place to stay until he can get his probation transferred to another state. I think he’s already given my address to his probation office. So he could start getting mail here. If he gets mail at my house and stays more than 2 weeks would he have tenant rights?

  • Diane

    I have a friend that spends a lot of time with me that has his own address, my neighbour thinks he lives with me but he does not . How do I prove this to my land lord. Or should I have to ?

    • Rebecca

      I am going through the same thing. My boyfriend visits my apartment on a regular basis but does not live with me. I have a vehicle he doesn’t so I pick him up a lot when he needs to use my car. so my landlord sees him almost on a daily basis but he doesn’t live here. they are trying to tell me I need to add him to my my lease. he visits during the day but goes home at night. he won’t let me add him to my lease since he doesn’t live here, I don’t feel my landlord has the right to tell me I have to add him to my lease or he can’t be on the property anymore. so I can no longer have my boyfriend visit as a guest on a daily basis? I don’t know if they can do that?

  • Trish

    I am a landlord, i rented my house to my daughter and her fiance they are on the lease. He moved in his mom and sister in because their house 8s being renovated and they have 2 dogs. The lease specifically states no dogs, but they say that the mom and sister dont live there so it doesnt apply. How can I fix this problem.

  • Vee

    My neice and child stay with me and my husband in our home. What rights does she have? She won’t leave. She said I can’t put her out. She pays no bills.

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