When Does a Guest Become a Tenant in California?
It happens all the time. A new boyfriend or girlfriend begins spending every night at your apartment rental. Someone down on their luck moves in sleeping on the couch while they try to get their life in order. Visiting relatives stay longer than expected. An elderly relative who needs help after a fall stays with their children.
Usually, at first this doesn’t seem like a big deal to the tenants. But for the landlord its important to get anyone who stays on the property past a designated time period on the lease or rental agreement to be legally accountable.
At what point under California Law do guests who are not initially screened and signed onto the rental or lease agreement become tenants? This is important for landlords to understand because guests can easily become major liabilities when they begin acting like tenants.
Tenants are People Whose Names Appear on the Rental or Lease Agreement
Standard rental and lease agreements often state:
Guests may stay a maximum of 14 days in a six-month period – or 7 nights consecutively on the property. Any guest residing on the property for more than 14 days in a six-month period or spending more than 7 nights consecutively will be considered a tenant. Anyone living on the property must be listed and sign the lease agreement. The landlord may increase the rent at any time a new tenant is added to the lease.
What Are the Signs You May Have a Rogue Tenant?
A rogue tenant is someone who is living on the property who has taken up residence without landlord approval, who is not listed on the lease or has signed it.
Common signs of a rogue tenant are:
- They spend most nights on the property
- They’re contributing to the rent
- They have a key
- They have moved furniture or pets onto the property
- They make requests for maintenance
Landlords are protected under California Law if a tenant allows another person to move onto the property without permission. Landlords are within their rights to evict the original tenant for violating the lease if they chose.
Begin a Dialog
If you see any of the above signs of a rogue tenant, best to start a dialog with the tenant listed on the rental or lease agreement and find out exactly what is going on.
This may be a difficult conversation for the landlord to initiate because nobody likes conflict and confrontation. But remember, most tenants don’t think of it as a big deal to allow someone they know stay with them. However, it can be a very big deal for the landlord who incurs a number of potential liabilities having someone residing on the property they don’t know who is not legally accountable because they havn’t signed the lease.
For starters, the landlord has no idea who this is and hasn’t had the chance to screen them, do a background check, and most importantly approve them as a result of exercising due diligence regarding who they are before allowing them on the property. While this may seem farfetched to the tenant who knows them, how do you the landlord know they are not a fugitive on the run, or a sex offender that could pose a hazard to other tenants?
Not having had the opportunity to run a background check on them so you know and have the opportunity to approve or disapprove of them carries many liabilities for the landlord if problems eventually occur further down the line. And how do you know they won’t with someone you don’t know?
For example, what if they are on the property and accidently start a fire that burns down several residences? Is the guest listed on your insurance policy? If not there is a chance you could be dealing with very expensive costs if the insurance company doesn’t cover all expenses because they were not considered a legal tenant who had signed the lease or rental agreement.
What if someone who is down on their luck sleeping on a couch doesn’t get their life together and you have to end up having to evict them for nonpayment of rent? If you have allowed this situation to occur past what is considered the normal period of time a guest is allowed to stay, they may be able to claim tenant status. This then requires you to go through the expensive Unlawful Detainer process just to get rid of someone who didn’t have their life together when they arrived on the property – that you never approved of in the first place!
Everyone can sympathize with a tenant with an elderly parent who has suffered a fall and wants to stay with their siblings when they need help recovering. However, that same infirmary that caused them to fall in the first place may reoccur while on the property. Only this time it could be construed that it was something on the property that caused them to fall, leaving the landlord with an expensive lawsuit.
What if they bring a pet onto the property that bites another tenant? Are you the landlord liable?
God forbid, they are a pedophile sex offender – one of the most difficult mental disorders to correct and cure with a very high rate of reoccurrence – that could pose a threat to children on your property you could be responsible if you allowed them to stay on the property!
Bottom line – you don’t know!
These are just a few of the ways a landlord takes on major liabilities allowing someone to reside on the property who is not legally accountable for having signed and agreed to follow the lease or rental agreement. Your tenant who knows and has invited this person onto the property probably has not thought through all of these eventualities that need to be explained to them if it doesn’t seem like a big deal to them – it certainly is to the landlord and you are making clear why.
Make a Determination of the Tenant’s Good Faith
It sometimes helps to initiate this discussion after giving the tenant 24 hour written notice that you intend to do a property inspection. This not only gives you the opportunity to look around and see who is there, but gives you a face to face meeting in which you can discuss the issue. It also helps resolve quickly any issues that could subsequently arise from insurance claims should that ever be necessary, so always better done sooner than later.
Expect that the tenant may not think having a guest stay this long was as big a deal to them as it is to you. But there are questions you deserve answers to and judge if they are being honest and sincere or trying to knowingly get away with something they know they shouldn’t be doing.
You can begin the conversation with something like,
“I’ve noticed there is someone on the property staying here who is not on the lease. How long have they been here?” See if their answer jives with what you already know.
If their answer doesn’t add up with what you already know, hold your opinion for now to try to get more information from them freely without seeming to confront them and putting them on the defensive. You can return to this discrepancy later after you’ve gotten answers to more questions.
The idea is to try to get as much information as you can at this point without giving any.
“Do they have a key?” If they do, that’s one indication of the legal definition of tenancy – although not in itself ironclad. In a court of law, it will be a preponderance of facts that determines legal tenancy which is why you want to get as much information as you can from the tenant at this point of the dialog without putting them on the defensive.
“Have they been receiving mail at this address?” There are reasons people can have mail sent to an address that is not theirs and is not in and of itself proof of tenancy. But it’s the pattern of residency you are trying to establish with these questions.
“Are they contributing rent?” Better to save this question for last after getting answers to the questions preceding this. Here’s why.
Tenants will frequently want to make the impression the individual is not a deadbeat, and so voluntarily offer an answer to this question that they are contributing rent. Fact is, this will probably be very difficult to find out other than having the tenant say they are.
If the answer to this question is yes, they are contributing rent, that is the single strongest evidence they are in fact a tenant which combined with the answers to the previous questions clearly establishes the pattern that will likely hold up in a court of law if it should ever come to that.
“What’s your understanding of the rental agreement regarding visitors?” Again, having the answer come out of their own mouth will make for the best outcome going forward. Refresh their memory with a copy of the rental or lease agreement they signed and see how they respond.
There are three steps to an effective resolution of a conflict.
- A sincere apology with an acknowledgement that a mistake was made
- An attempt to make right what was wrong
- A promise not to repeat the mistake going forward.
If you feel they are working with you and want to continue the rental agreement, then the guest needs to be added to the lease with their signature so they are legally accountable as a tenant. The landlord has the right to raise the rent at this time with the addition of another occupant. However that may conflict with local rent control laws that are important to study and act appropriately.
If you feel the issue is not resolved to the landlord’s satisfaction, allowing people to reside on the property past the designated guest period is grounds for eviction if that is made clear in your agreement.
Never Accept Rent from Someone Who is Not on the Lease
If you accept rent from someone who is not named in the lease, a landlord tenant relationship is established under California Law before they have agreed to the terms of the agreement. If you do accept rent, you will establish rights for the tenant that may make them harder and more expensive to get rid of than a trespasser or squatter.
Rent is usually money, but it can also mean services. The moment money or services changes hands between a landlord and an occupant it establishes a non-verbal rental agreement which may create an uphill battle for you in court if you should ever have to remove them. While tenants often feel allowing a guest to move in isn’t a major issue because they know them and feel in control, guests can easily become pests when they overstay the prescribed time limit if they are not screened and if approved, signed onto the lease so they become legally accountable. While this can often seem rather innocent on the tenants part, it’s essential for a landlord to protect themselves and educate the tenant on what you will and will not accept because there are major liabilities for landlords under California law if tenancy is established without first signing a rental or lease agreement.
At Fast Eviction Service, help on any of the issues discussed in this article is simply a click or phone call away. Email firstname.lastname@example.org or call our office at (800) 686-8686 to discuss your questions for a free evaluation of your case.
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Filed under: Dealing With Tenants