Unauthorized Occupants Could Trigger a 3-Day Notice

Taking in a roommate or a long-term guest seems innocuous enough. Maybe it’s a means to pay the rent or a goodwill gesture to a friend or family member. But the presence of unauthorized occupants may be a breach of the lease or rental agreement. So it’s always smart to read what it allows and then secure permission from the landlord if necessary. Lets look at a couple of situations that may get the unwitting tenant into some trouble.

Inviting in an informal roommate or a guest to crash on the sofa wouldn’t seem like that much of a risk.Yet the law is on the side of the landlord when it comes to occupants. He has a right to know who is residing at the property.

Indeed there is a good case to be made for a landlord exercising some control: he is liable for the health and safety of his tenants and he wants to safeguard his property from damage. The landlord also has a duty to allow his tenants their quiet enjoyment of the property. Additional occupants means more foot traffic, and a problematic tenant or guest can disturb the neighbors.

When criminal activity is alleged the landlord has a duty to take care to address it. (That’s why the landlord can move for an immediate eviction if unlawful drug-related activity or domestic abuse is documented.)

Landlord associations say carefully screening tenants and keeping an eye on guests is a must. They provide lease templates to landlords that prohibit subletting and may even tightly regulate guest stays.

One such case that came to my attention involved a traveling tenant with a friend who tended her apartment for a few days each week. “Stay at my place…” But in the lease was a draconian provision that put a 14-day cap for the entire year on overnight guest stays.

14-day guest provision
You be the judge: is limiting overnight guest stays to fourteen days per year too draconian a provision to include in a lease?

In this instance, the friend is considered an unauthorized occupant; the landlord moved to evict for cause; and the lease provision seemingly left the tenant little room to argue a case. She departed without relocation fees.

What is an ‘Unauthorized Occupant’?

Any ‘unauthorized occupant’ is simply an occupant not on the lease. This can be a partner, a friend, a relative (or an AirBnB guest). The unauthorized occupant is grounds for an eviction for cause if it is not corrected by the tenant.

Surveillance camera
Landlords are more frequently installing surveillance cameras to keep an eye on the property. Even if they live there!

Typically the landlord has heard about a subtenant or a guest. Maybe he’s seen videotape of the occupant coming and going frequently. Maybe a neighbor ratted on the tenant because of his heavy feet. When the tenant gets the notice she should read the lease.

The lease will enumerate any conditions related to occupancy. Is an additional occupant explicitly prohibited by the lease? If so the tenant has few options, so her response to the landlord should be carefully considered. Of course the lease terms continue to govern a tenancy even after it’s gone month-to-month.

If it is an additional occupant like a partner, the tenant should ask the landlord to put the additional occupant on the lease. That entails an addendum to the lease which likely means a new rental agreement and often at a higher rent. (Chapter 5 tenants may be hit with only a 10% surcharge.)

Alternately the tenant can choose to ask the unauthorized occupant to leave. That is the best option if the landlord has already posted a 3-day notice to correct the problem of unauthorized occupancy or to quit the premises. (I want to emphasize that the tenant’s top priority should be to avoid the 3-day notice as it puts the tenant in a precarious legal position: run afoul of the three-day window and the next step is an unlawful detainer in which a tenant has near-zero chance of beating the rap in court.)

If necessary reach an agreement with the landlord for a voluntary departure and leave with a good referral. Like a for-cause eviction this exit will foreclose any relocation fee.

Unauthorized Occupants Bring Additional Complications

There is another reason not to bring in an occupant on the QT: the tenant who enters into an arrangement with an unauthorized occupant risks potential complications even apart from the landlord.

First, the primary tenant is responsible to the landlord for any damage and that includes damage caused by guests and even unauthorized occupants. (They however skate free.) Even if the landlord evicts on a 3-day notice he can come after the tenant later. By the same token, the unauthorized occupant will have no protection should catastrophe strike. A renter’s insurance policy will protect only the policyholder if personal property is damaged or goes missing in a theft. As the ‘police blotters’ attest, it happens all too often.

Second, parking is a potential wrinkle if an occupant seeking a preferential parking permit for on-street parking can’t get it without being named on the lease or rental agreement. And a tenant who allows the unauthorized occupant to park in her spot may see the landlord issue a notice to correct or quit. In some cases the car will be towed. And even if the lease didn’t explicitly prohibit non-resident parking, the landlord could impose such a condition with only 30 days notice. So you have to be careful what you promise your occupant.

Ironically the biggest potential surprise that awaits the tenant who enters into a formal arrangement with a roommate unknown to the landlord is that the tenant herself becomes a landlord. As the essential California Tenants Guide points out, the roommate is technically a ‘subtenant’ in an agreement between her and the original tenant.

The original agreement with the landlord remains in effect. But the ‘sublease’ is binding on both occupants of the unit and in effect accords the original tenant the responsibilities of a landlord. But if the roommate does not pay up it is still the tenant’s responsibility.

Should the original tenant want to end her month-to-month tenancy she had better hope that her sublease agreement includes that as a condition! Some rent-stabilized cities will even come to the defense of the subtenant in a dispute.

Reasonable Accommodation: A Narrow Exception

There is one narrow exception to the prohibition on unauthorized occupancy: a disabled tenant may request from the landlord a reasonable accommodation for live-in care or other assistance. Federal and state law impose upon the landlord an obligation to accommodate a tenant who needs assistance as long as that need is documented. The principle is that every tenant should have an “equal opportunity to use and enjoy a dwelling,” according to California’s Government Code.

The landlord must make the necessary accommodation (or explain why that is not practical). It’s a very powerful tool that can permit the occupancy of a live-in caregiver even if the lease bars an additional occuant. But this should not be construed as a trump card for a tenant behind the 8-ball after getting pinched for an unauthorized occupant who is not a caregiver.

Do you have experience negotiating with the landlord or defending against an unlawful detainer over unauthorized occupants? Let me know!

Postscript: Don’t AirBnB!

Wanting to know how many landlords were holding units off the market for the purposes of short-term rentals we took a stroll around AirBnB for two 3-day periods this past January. We found about a half-dozen properties that were partly or entirely run as short-term rentals. That’s bad: it keeps these properties off the market.

But we found many more instances of tenants who were leasing their units for short-term rentals on the platform. Don’t do it! The tenant if busted may get off with an admonition or maybe a 3-day notice to correct (putting the tenant in possible violation of the AirBnB terms.) The landlord who wants the tenant gone may not accept a correction. The tenant has breached the lease (the sublets clause most likely) and violated city law too. We have seen tenants summarily evicted.

Suffice to say that while a landlord can go for months or years without fear of penalty for short-term rentals, the tenant faces a sudden death: eviction.