Q: My lower unit is rented out to two adults (both names are on the lease). I have just discovered another adult may be living there. I did not authorize this nor was this person checked out or their name placed on the lease. I would prefer to have the original couple that I rented to stay in the unit as the utilities are split 60/40 between the upstairs and downstairs tenants.
What can I do in this case? Can I get rid of this third person, or increase the rent and up the utility percentage now that there’s an extra person? – TVS Landlord
This is a common problem for landlords and the best policy is to anticipate the contingency of the unauthorized occupant and plan for it.
You do this by:
Stating your occupancy policy in the lease;
Requiring tenants to notify you if they want to bring in a new occupant;
Demanding the right to screen the new occupant;
Reserving the right to reject an individual occupant if they are inappropriate; or,
Renegotiating the terms of the lease.
Make sure your lease clarifies any restrictions on long-term house guests, and require that any proposed new occupants must complete a rental application and undergo a tenant background check.
If you do not approve the new occupant, you may have the legal right to force them out either as a trespasser, or by threatening to evict your existing tenants.
But before you do that, make sure you have checked with a legal expert in your area first.
In some areas, local laws prevent the landlord from evicting a tenant simply because they bring in a roommate, even if that violates the lease. However, if the individual roommate was not approved, is not appropriate, or is costing you more money, you may still have an argument for eviction.
If you rent in an area that does not protect tenants from eviction for inviting in a roommate, your lease agreement may prohibit unauthorized occupants, and you can evict the tenant along with the occupant for the violation of the lease agreement. In that case, the lease will likely provide a time frame in which “guests” become “occupants” –typically 14 days, and you will have to prove the new occupant is living there.
On the other hand, if you do decide to allow the roommate to stay, then the question is whether they can be added to your original lease, or whether all three adults must now re-negotiate a new lease.
Unfortunately, only a legal expert in your area can tell you for certain what you have the right to do in this situation given your specific lease agreement and your local laws. However, courts have upheld the rights of landlords to require the tenants to pay additional rent or costs after they add new occupants.
For instance, in a recent court case, two original tenants allowed two new guests to move in. Later, one of the original roommates moved out. The landlord negotiated verbally with the remaining roommate to stay in the rental property with the two new occupants. The landlord indicated that the monthly rent would be increased from $900 to $1,100 because of the extra occupant, and that a corresponding amount would be attributable to a security deposit.
The remaining tenant completed the rental term, but later filed the legal action to see if he was entitled to a credit for the increased rent and deposit.
The judge decided that when the occupants changed, the original lease was terminated and a new lease–at the higher rent, was controlling.
That case also illustrates why your lease must be drafted to keep you in control–otherwise you could be faced with a situation where you don’t know who is living in your rental property, you have no way to pursue them for rent or contact them in case of an emergency, and if you haven’t run a tenant background check, you don’t know if they are appropriate to be in your property or around your other tenants.
This post is provided by Tenant Verification Service, Inc., helping landlords reduce the risks of renting with fraud prevention tools that include Tenant Screening, Tenant Background Checks, (U.S. and Canada), as well as Criminal Background Checks, and Eviction Reports (U.S. only).
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Disclaimer: The information provided in this post in not intended to be construed as legal advice, nor should it be considered a substitute for obtaining individual legal counsel or consulting your local, state, federal or provincial tenancy laws.
