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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242 CommentsLeave a Comment

  • John Kensieven

    Tenant left, a friend has stayed behind. He’s not listed on the lease in any fashion. What rights does he have?

    He hasn’t paid, I don’t even know who this guy is. Won’t leave. Do I have him arrested for trespassing?

    • Vanessa Walls

      He is not nor ever was on the lease. You can have him arrested I’d think as a squatter or be treated as a person who broke in I’d think. He never ever had permission to be there. I’d likely contact a lawyer first to check. That is important. Depending on what you find out I’d go over when he’s not home and sit all of his things on the street and change the locks the same day. IF he has rights then you can’t do it that way of course. I have a lot of police friends and I’d gather them up and as many people as I could and proceed with sitting things on the street. I hope this helps.

  • Nancy

    My brother died. Left a will naming me as executor and left all assets to me. Nephew thought he was entitled to house so he went to house, got locksmith to unlock door, changed locks. Called police within 4 hours of breakin but they said he could stay since he had a key and I would have to evict him. He has been selling all personal property of deceased that was left in house including anew $5000 generator Why isn’t this criminal trespass?

  • Adaline

    But “temporarily” has become six weeks, even though you always set clear expectations for house guests. What does this mean for you? Should you notify your landlord?

  • Just get out

    My friend asked to use my address for his mail. Now he won’t leave. I called the cops and said he didn’t live there, but my friend said he did because he receive mail at my house. Can he get away with that?

  • Peggy Williams

    Signed the lease with my boyfriend last month now this month all of a sudden the office saying I have to pay fifty dollars and do a background check isn’t it kinda late to be asking me to do this

  • DANNY

    I live in Bakersfield California in a mobile home park with my Grandma
    I have been there for 14 months am 58 years old Disabled I get mail there
    The manager knows how long I have been there.and 90% of the People who live there knows me. So am I still a visitor? Is there a Law. Can someone help me out with this. Thank you Danny. 1/ 22/ 2020

  • Ally

    Landlord is trying to get guest to pay $10 a night after a 2 day stay. And they need to give info before the stay. Is that allowed? I live in an apartment.

  • Mary Ellen

    I have tenants whose mother-in-law comes over and stays during the day and brings her two dogs with her everyday. I have a clause in the lease that there are no pets without a $300 non-refundable pet deposit per animal. can I collect the pet fee and add the mother-in-law to the lease. There are times when my tenants are out of time and she stays the night at the house for days at a time. My tenants are over the road truck drivers and are constantly gone for weeks at a time.

    Thank you.

  • Deadly friend

    Can, I,b kicked out a room I have been in four 2 years ?

  • C.lowe

    I have a friend who let his new girlfriend move in with him and she has started goin crazy. The property he lives in is currently his mothers property who lives next door. His crazy girlfriend has been staying there for about 7 months. She does not receive any mail there. She does not have a job. His mother does not want her on the property or staying there. He has come to his senses and now wants her out. What should he do. I am a notary and i was thinking of drawing something up for his mom saying she is not welcome on the property and not to come back and his mom sign it and I notarize it. Is this something his mother can do to get her to stay off property and not come back?

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