Is it a Guest or Tenant? Understanding Types of Unauthorized Tenants

Imagine going through all the trouble of marketing, properly screening tenants, and signing leasing documents, only to discover unwelcome occupants in your rental property. As a landlord, understanding who a tenant is, who is a guest, and who is an unauthorized occupant is essential. Knowing what your lease says and understanding local landlord-tenant laws can also help you decide how to address them. Continue reading below as we define common types of unauthorized tenants and outline what to do when discovered.

Main Takeaways

• Unauthorized occupants are people living in a rental property without the permission required under the lease.
• A guest does not automatically become a tenant after a specific number of days; lease terms and state and local laws can affect how extended stays are handled.
• Clear guest and occupancy policies can help landlords set expectations about who may live in the rental and when approval is required.
• If an unauthorized occupant violates the lease, landlords should follow the notice and legal procedures required in their jurisdiction rather than attempting to remove the person themselves.

Types of Unauthorized Tenants

Property management companies in Baltimore may encounter several types of occupants when managing rental properties, from authorized tenants to long-term guests who aren’t on the lease. Understanding the differences can help landlords determine when an occupant may violate the lease and what steps to take next.

• Tenant – A tenant is generally someone who has the legal right to occupy the rental under a lease or rental agreement. The exact definition and rights of a tenant can vary depending on state and local law.
• Authorized Occupant – An authorized occupant is someone permitted to live in the rental but who may not be a named tenant responsible for the lease. For example, a lease may list children or other household members as authorized occupants.
• Subletter – A subtenant generally rents all or part of the property from an existing tenant rather than directly from the landlord. Some leases allow subletting with the landlord’s approval, while others restrict or prohibit it. A subtenant may become unauthorized when the arrangement violates the lease or applicable law.
• Extended Guest – A guest (over the age of 18) may raise concerns about unauthorized occupancy when their stay goes beyond the limits in the lease or they appear to be using the property as their primary residence. Landlords should review the lease and applicable local laws before determining that a guest has become an unauthorized occupant.
• Squatter – A squatter generally refers to someone occupying a property without the owner’s permission or legal right to do so. A tenant who remains after the lease or tenancy has ended is more accurately described as a holdover tenant, and the legal process for removing them may differ

Why are Types of Unauthorized Tenants a Problem for Landlords?

Discovering types of unauthorized tenants in your rental property is alarming for landlords. These tenants present a problem because they were never on the lease or no longer had a current lease. That said, there are several concerns in these situations that make it an urgent matter. Read on for a few risks of unauthorized occupants.

• Nonexistent or Unenforceable Lease – When tenants sign a lease, they agree to follow its terms and conditions. An unauthorized occupant may not be a party to the lease, which can make enforcing lease responsibilities more complicated. However, the named tenant may still be responsible for complying with lease provisions related to guests and occupants. That said, this also includes other rules the occupant may not be aware of, such as HOA policies and parking violations. All of which cause added stress for the landlords with few options to remedy the situation.
• Added Risk of Property Damage – Legal tenants may bear responsibility for their visitors’ actions. Additional occupants can also increase wear or the risk of property damage, while responsibility for damage will depend on the lease, circumstances, and applicable insurance coverage. However, it may be difficult to hold different types of unauthorized tenants responsible.
• Lack of Rent Payments – An unauthorized occupant may not have the same rent obligations as the tenant named in the lease, which can complicate disputes over payment, occupancy, and responsibility for the property. So, when these types of unauthorized tenants take up residence, they are likely not paying rent. Moreover, the process to evict them can be lengthy and expensive. As a result, landlords may face financial losses while going through the necessary legal process.

When Does an Extended Guest Become a Tenant?

When it comes to different types of unauthorized tenants and guests, each state may have varying laws regarding becoming a true tenant. The length of stay can help determine the person’s occupancy status. That said, length of stay is not the only factor involved in distinguishing guests and tenants. Some of the other telltale signs of a guest transitioning to a tenant include –

• Moving in Items – One of the first telltale signs beyond length and consistency of stay is when a guest starts moving in items. That said, this could be furniture, personal items, or even a pet. This means the guest could view the unit as their home.
• Accepting Mail – In general, a visiting guest is not otherwise associated with the address. If, however, the individual begins receiving mail or packages to the address, this is a red flag for landlords. In addition, mailing addresses are often used as a form of residency identification. Therefore, receiving mail at the location could indicate evidence of occupancy.

But, mail alone doesn’t necessarily determine someone’s legal status as a tenant.

How to Address Types of Unauthorized Tenants in the Lease

Regardless of the individual, types of unauthorized tenants present a litany of problems for landlords. When it comes to preventing them, the best course of action is a clear and legally documented guest policy. To create an effective policy, property owners must address the following questions –

1. What defines an authorized guest? – A guest policy must clearly define who is a guest and when an extended guest requires landlord approval. In general, friends, family, or acquaintances stay for only a short time. However, if a guest plans on staying for an extended period, the tenant may need to notify the landlord or request approval.
2. How many guests are allowed in the home? – Your lease should clearly explain the guest policy, including when tenants need to notify you or request approval for an extended stay. Make sure any limits comply with applicable state and local laws. So, in an effective guest policy, state the maximum timeframe a guest can stay without notifying the landlord.
3. What is the Occupancy Limit? –Guest and occupancy policies should also account for applicable occupancy standards. HUD generally considers an occupancy policy of two people per bedroom reasonable under the Fair Housing Act, but this is not an absolute rule. Factors such as the size and configuration of the unit and applicable state or local laws may affect what is reasonable. In some cases, local laws base occupancy on square footage, so be sure to check local regulations before creating your guest policy.

Guest and occupancy policies may be subject to reasonable accommodation requirements under the Fair Housing Act. For example, a tenant with a disability may request an exception to an ordinary guest or occupancy rule for a necessary live-in aide or caregiver. Landlords should evaluate reasonable accommodation requests individually and in accordance with applicable fair housing laws.

How to Handle Unauthorized Occupants

Unfortunately, landlords must sometimes deal with unauthorized occupants. Even with proper tenant screening and a well-written lease, issues still arise. So, as well as having safeguards in place, landlords should follow the steps below to take quick action in dealing with unauthorized occupants.

• Make Contact with the Tenant – Sometimes, the tenant just needs a simple reminder of the lease guest policy. Ideally, this is all you need to remedy long-term guests in your rental property. Talking with the tenant lets owners convey expectations and gather further information on who the occupants are and how long they intend to stay. If the guest’s stay appears to violate the lease, explain the applicable lease provision and give the tenant an opportunity to clarify or address the situation.
• Follow the Required Notice Process – If the issue isn’t resolved, review the lease and applicable state and local requirements before taking further action. The type of notice required, how much time must be provided, and whether the tenant has an opportunity to correct the violation can depend on the circumstances and location.
• Pursue Legal Action if Necessary – If the issue cannot be resolved, landlords may need to use the appropriate court process. Depending on the circumstances, this could involve a breach-of-lease, tenant-holding-over, or other applicable action. Avoid attempting to remove an occupant yourself and follow the court process required in your jurisdiction.

FAQs About Unauthorized Tenants

Unauthorized occupants can create a tricky situation, especially when it is unclear whether someone is simply visiting or actually living at the property. Here are answers to some common questions landlords have about guests and unauthorized occupants.

What is an unauthorized tenant?

Someone may become an unauthorized tenant or occupant when they move into a rental without the approval required under the lease. For example, a tenant may allow a partner, friend, or relative to move in without notifying the landlord when the lease requires approval for additional occupants.

How can a landlord tell if a guest is actually living at the property?

There isn’t always one clear sign. A landlord may notice that the person stays at the property consistently, keeps personal belongings there, receives mail at the address, or otherwise appears to use the rental as their primary residence. Landlords should consider the overall circumstances along with the lease terms and applicable laws.

Can a landlord limit how long guests stay?

Landlords can set reasonable rules in the lease for guests and extended stays. However, landlords should make sure their guest policies comply with applicable landlord-tenant, occupancy, and fair housing laws.

Can a landlord evict a tenant for having an unauthorized occupant?

A tenant may violate the lease by allowing an unauthorized occupant to move in when the lease restricts additional occupants or requires landlord approval. However, landlords must follow their jurisdiction’s notice and court procedures before pursuing an eviction.

What should a landlord do after discovering an unauthorized occupant?

Start by reviewing the lease and speaking with the tenant to understand the situation. If the tenant does not resolve the lease violation, the landlord can follow the applicable notice and legal procedures.

The Best Way to Handle Any Tenant

The best way to handle all types of unauthorized tenants, excessive guests, or illegal tenants is through qualified property management. All landlords should familiarize themselves with local laws and restrictions regarding tenant guest policies. However, property managers offer added expertise in creating legal policies, screening applicants, and enforcing rules on behalf of the owner.

At Bay Property Management Group, our team understands the many risks unauthorized occupants present. We actively work to prevent these individuals from taking up residence but also have an effective eviction process in place just in case. So if you are a property owner dealing with long-term guests, squatters, or holdover tenants, contact us today to see how professional management can help you get control of your property back.