Guests increase on our properties during the summer. Whether it is family and friends visiting or children spending time with parents, individuals not listed as leaseholders or occupants on the TAA Lease live on our properties. Therefore, before the busy summer vacation season begins, now is the perfect time to review and familiarize yourself and your onsite teams with your company’s guest policy and procedures, as well as leaseholder obligations under the TAA Lease contract regarding guests and unauthorized residents. It is also an opportunity to communicate this information to your residents.
Like most operational issues, the TAA REDBOOK contains numerous tools and resources to assist residential rental housing owners and operators in complying with unauthorized occupants. Before we go any further, please remember this article does not provide legal advice. If you need legal advice, contact one of AATC’s member attorneys (https://www.aatcnet.org/legal-services-program). Following are industry best practices to manage guests and unauthorized occupants.
Like many operational issues, the TAA Lease clearly addresses unauthorized occupants and guest conduct. First, review TAA Lease paragraphs 1.1 and 1.2 that define residents and occupants. These definitions help clarify who is allowed to possess and occupy the unit.
Next, refamiliarize yourself and your colleagues with TAA Lease paragraph 10.3. This section specifically addresses guests. This section states:
Anyone not listed in this Lease cannot stay in the apartment for more than _______ days in one week without our prior written consent, and no more than twice that many days in any one month. If the previous space is not filled in, 2 days total per week will be the limit.
You have heard the phrase it is easier to get forgiveness than permission. For most of us, this line is a humorous aside. Unfortunately, for some residents, it is a way of life. Residents who fail to get written permission for additional occupants are in violation of the TAA lease. The resident must seek your written consent, whether it is a child, cousin, boyfriend/girlfriend, or long-lost college roommate. It matters not if it is Christmas, summer vacation, witness protection, or benevolence; they still have to get you to agree (in writing) to allow the person to occupy the unit.
The keywords in paragraph 10.3 are “prior written consent.” You must give the resident permission in writing before they can allow anyone (regardless of age) to occupy the rental unit who is not listed as a leaseholder(s) in paragraph 1.1 or as an occupant in paragraph 1.2.
This provision prevents residents from harboring criminals, sex offenders, undocumented immigrants, deadbeats, lovers, etc. More importantly, this lease provision protects owners, onsite staff, and other residents from potentially harmful actions or dangerous situations when a resident hides someone in their unit.
You may or may not forgive them, but they absolutely must get your permission.
You have two options when you find out you have an unauthorized occupant.
First, you can require the leaseholder(s) to have them leave the unit. If the leaseholder (s) fail to comply, they (the leaseholder) are subject to eviction.
You cannot “evict” the unauthorized occupant. They are not in possession of the rental unit. The unauthorized occupant has no legal right to be in the unit; in effect, they are trespassing.
Secondly, you can allow the person to stay. Still, TAA’s general counsel highly recommends that they do so on the condition that they complete a rental application and successfully meet your rental criteria. To minimize potential risk, TAA’s general counsel recommends that owners or managers should require all adults who will be occupying the dwelling to at least fill out a rental application–even if they are to be listed as an “occupant” who does not be sign the lease as a resident.
Having the unauthorized individual complete a rental application may give you a clue as to why they are not on the lease. Those reasons include the following:
• They skipped on a previous owner;
• They trashed out the previous owner’s dwelling; or
• They have a serious criminal record.
Having the unauthorized individual complete a rental application also provides you with essential information such as:
• Information about their vehicles;
• their telephone numbers;
• work information; and
• emergency contact names and addresses.
TAA’s general counsel adds, “The mere fact that you require the occupants to fill out the rental application will have some “preventive medicine” effect to turn away applicants who know that their occupants have serious or dangerous “skeletons in their closet” which may be discovered if you check out occupants as well as residents.
Next, read TAA Lease paragraph 11 (Conduct). This paragraph gives owners/managers the ability to exclude anyone from the apartment community who is violating the lease contract or any policies or rules of the community. Therefore, you have the right to prevent the unauthorized occupant from remaining on the premises.
The bottom line: the leaseholder(s) is responsible for ensuring that their occupants and guests comply with all rules and policies of the community.
Ben Franklin once remarked that houseguests, like fish, begin to smell after three days. You may want to impart Ben’s wisdom to some of your residents whose “guests” have overstayed their welcome.
Nicole Zaitoon, Allied Property Management, is AATC’s 2023 Government Affairs Committee Chair and a member of AATC’s Board of Directors.
