How Many Days is a Tenant’s Visitor Allowed To Stay?
Q1
How many days is a tenant’s visitor allowed to stay?
A1
It depends on whether the lease deals with the subject. If it does not have a lease clause specifying a limit, you may have trouble enforcing any limit. If the issue went to court you’d have to convince the judge that there should be a restriction under the legal principle of equity.
A lease agreement should always contain a clause dealing with this issue. Having such a clause provides a clear violation of the lease agreement if a tenant tries to move someone in for a longer period. However, the limitation should be reasonable. If the matter went to court, the definition of reasonable would likely depend on the judge’s personal standard. Typically, such lease clauses limit the number of nights a visitor may stay during a specific period without the landlord’s written permission. This might be 3 days within any 30-day period, 10 days within any 6-month period or 2 weeks within any 12-month period or any other combination of numbers and periods that you consider reasonable and that will not impact your ability to attract and keep tenants. The limit of 10 days within any 6-month period without “registration” is an often used limit.
The limits should not be unduly restrictive. For example, a judge would likely consider it such if tenants are required to “register” all overnight stays. However, keep in mind that you don’t have the right to restrict a tenant’s social life or pass judgment on the propriety of visitors’ stays.
You may want to include a clause within your lease that provides information regarding the need for and the procedures for changing a visitor to a co-tenant. This is generally advantageous, as it results in someone else to go after if there are unpaid rents and/or damages.
Lease agreements should also include clauses prohibiting or otherwise limiting assignment and/or subletting and/or roommates. If not completely prohibited, conditions of approval and explanation of the approval process should be included.
As with any lease clause, such clauses must not violate any state laws or local ordinances (it is possible some jurisdictions may disallow total prohibition against assignment/subletting and/or otherwise limit restrictions) and must be enforced fairly and equally among all tenants and not in any discriminatory manner that might provide cause for a fair housing law violation claim.
* * * * * *
Q2
I have a tenant that is in a month-to-month lease that I would like to terminate. I suspect he is not going to go easy, will likely stop paying rent upon notice, and could leave the property in damaged condition (holding 2 months security deposit that was given by a girlfriend who has left). Current lease stipulates that at least 60 days notice will be given in this situation. Do I need to worry about any fair housing issues.
A2
Detailed discussions of evictions and fair housing issues can be found in the Mini Training Guides and the eCourses. As examples, the Training Guides titled “9 Steps to Eviction” and “9 Steps to Avoiding Fair Housing Problems” cover those particular topics. Those subjects and many others are also covered in certain lessons of the various eCourses. Both topics are covered extensively in lessons of the “Income Property Basics” and “Managing Income Property” eCourses. The “Evictions” eCourse is dedicated to that particular subject.
The above being said, I will try to briefly discuss some of the issues in your posting. First, I must assume that there is some reason that you wish to terminate this tenancy. If you are getting the rent on time and he’s not causing any other significant problems, be sure that you consider the total costs of a vacancy. For a month-to-month tenancy the rent can be increased at any time upon appropriate notice – 30 days in most states, although some states require a longer notice period under certain conditions and any longer period specified by the lease agreement must be followed. Sometimes a significant rent increase will cause a problem tenant to depart.
In general, no reason need be given for termination at the end of a lease period – month-to-month in your case – and it is best to not provide a reason that might be turned into a fair housing claim due to the way the reason was worded or how the tenant interpreted the reason. One should usually not let fear of retribution prevent termination of the occupancy of a bad tenant, including one who doesn’t pay the rent in a timely manner. If he does purposeful damage, report the matter to the police as a crime.
For an existing bad tenant, retribution problems can sometimes be reduced by some simple steps. First, give notice immediately after the most recent rent check has cleared the bank rather than the required notice period before the due date. Most states allow the date of termination to be any day of the month as long as proper notice is given. Second, take immediate action if rent is not received as required. This means, for example, serving a “pay or quit” notice the day after the rent is due and not paid and then filing with the court to begin the eviction immediately after the notice period expires as allowed by law of the particular state.
The fact that his girlfriend paid the tenant’s deposit may or may not be an issue. If she was also on the lease you will need to be sure that an accounting for the security deposit be provided to both parties and that any possible refund be made via a check made payable to them jointly. Of course, the accounting/refund must be provided within the period required by your state’s law, because failure to do so can result in substantial penalties in some states, including treble damages and/or prohibiting deductions from security deposits, requiring the landlord to file a lawsuit to obtain any money.
Although, perhaps not directly helpful for the current problem, I will mention that a landlord can minimize the costs resulting from bad tenants. As for many potential problems, the first line of defense is to have adequately screened and properly selected the tenant in the first place. The next most important defense is to utilize good documentation, including an adequate lease agreement and good move-in/move-out procedures that include a good checklist.
Finally, if you are really worried that the termination “will not go easy” you should consider turning the matter over to a competent attorney from the initial notice to the eviction if necessary. There are numerous ways in which a knowledgeable tenant can delay the eviction when the landlord is not experienced in such matters and mistakes made by the landlord can result in needing to start over after weeks of effort, adding to both time and expense of evicting. The cost of a good attorney can sometimes be considerably less than the cost of delays in eviction.
* * * * * *
Q3
Do you have any resource on what you can and cannot ask during tenant screening and if it is permissible to make copies of tenant documentation? Also, can I give the applicant a copy of the report?
A3
You can ask for almost any documentation that might be of use in screening and you should make copies of anything that could ever be of use in (1) tracking down a skipped tenant, (2) collecting a judgment, or (3) defending yourself against a fair housing complaint. However, you must be very careful to request the same information from all applicants in order to avoid any claim that you discriminated against a particular applicant(s) or protected class of applicants.
Obviously, there will be cases where certain information/documentation is not applicable because of reasons not related to protected classes. For example, you would not expect to obtain W-2 forms from a self-employed applicant and you would not usually care about seeing tax returns of an applicant who provides W-2s. The best procedure is to provide written information with your application forms about this and other relevant issues related to screening. For the example, you might state in the information that tax returns to verify self-employment income and W-2s must be provided to verify employment income. This would take care of all three cases – that is: self-employed only, employed only, and those who are both.
Regarding providing a copy of credit reports or other screening reports, the credit reporting agencies recommend you not do so. Some states require the applicant be provided a copy upon request. You need to check the law of your particular state.
For applicants to whom you must provide an adverse action notice, FTC regulations require that when an adverse action is taken that is based solely or partly on information in a consumer report the FCRA requires the landlord to provide a notice of the adverse action to the consumer. The notice must include:
- The name, address and telephone of the CRA that supplied the consumer report including a toll-free telephone number for CRAs that maintain files nationwide,
- A statement that the CRA that supplied the report did not make the decision to take the adverse action and cannot give the specific reasons for it, and
- A notice of the individual’s right to dispute the accuracy or completeness of any information the CRA furnished, and the consumer’s right to a free report from the CRA upon request within 60 days.
However, be aware that certain states have more restrictive consumer credit laws and additional requirements. For example, CA requires the landlord to give a receipt for any fee collected ($30 or $35 as I remember) and provide the applicant a copy of the credit report when requested.
Be sure you understand which types of screening require an adverse action notice and which do not, as the penalties can be quite high for failing to provide the notice if required. Landlords who fail to provide required disclosure notices potentially face legal consequences. The FCRA allows individuals to sue landlords for damages in federal court. A person who successfully sues is entitled to recover court costs and reasonable legal fees. The law also allows individuals to seek punitive damages for deliberate violations of the FCRA. In addition the Federal Trade Commission (FTC), other federal agencies and the states may sue landlords for non-compliance and get civil penalties. However, a landlord who inadvertently fails to provide a required notice in an isolated case has legal protections, so long as he can demonstrate “that at the time of the violation he maintained reasonable procedures to assure compliance” with the FCRA.
* * * * * *
Additional Information
Most of the issues discussed in these Q&A’s are covered in considerably more detail in our eCourses and/or in our Mini Training Guides.