Those guests are not paying any rent, so who do you sue? Believe it or not, this happens.
Generally speaking, when you have a contract, you have it with a very specific party. So, with a lease, you have a specific landlord and a specific tenant. If you’re keeping tabs on your tenant or your tenants, you know who is located on the rental property.
You know who signed the Lease and who didn’t sign it. You should know each of the Tenants and each of the occupants. And each of the occupants should be identified in your lease.
But sometimes people move, people get divorced, or they get a new baby, or Grandma comes over to stay for a visit and, sometimes, she stays to live. What do you do whenever your tenant fails to pay rent and then decides, “You know what, I’m out of here,” but they leave behind someone in their place who you know nothing about?
The truth is, the only person you have an agreement with is the original tenant, the one who signed the Lease. And if you asked that original tenant to leave in a properly delivered Notice to Vacate, but nobody surrendered possession to you, that’s all you need to know.
You can actually sue the original tenant who signed the lease, particularly if your lease defines what surrender of possession is. So, you hand in your notice to vacate, which says, “Get out,” and it should mean that your Tenants take all of their stuff with them. Then they hand you the keys. Case closed.
But in this situation, there’s no way they can hand you the keys. And there’s no way that they’ve taken out all of their possessions because somebody else is there and somebody else’s stuff is there. It doesn’t really matter who the possessions belong to and why they have not given up the key.
What matters is that that tenant is the one who gave these people permission to stay. If you can’t sue the original tenant, you may not know who is staying there, and you certainly cannot collect unpaid rent in a judgment from someone whose name you do not know. So, the best policy is to sue the original tenants.
If tenants who are there fail to move and cause harm to the property, you can’t be said to have to absorb all of those costs yourself just for being the Landlord. In fact, the person who is the most on the hook here is that tenant who allowed somebody to stay on the rental property without your permission.
So, if somebody allows guests to stay, you send them a notice to vacate, they leave but the guests stay, sue the guy who left. In reality, they’re the ones who signed the contract and but for their actions you wouldn’t have these guests who are holding over.
To defend against this kind of situation, I recommend having provisions in your lease that state the following in some form:
- Guests may not stay on the Premises for seven or more days in any given month without written permission from the Landlord;
- Any guest that remains on the Premises for seven or more days in any given month without written permission from the Landlord is an unauthorized occupant;
- An unauthorized occupant found on the Premises will constitute a breach of the Lease and will serve as grounds for Termination of the Lease;
- Surrender of the Premises, whether or not by written demand, includes leaving the Premises in broom swept condition and delivering all of the keys to the Premises to the Landlord.