Overnight Guest or Unwanted Tenant: Invited Guests Who Overstay Their Welcome Can Become Your Costly Legal Problem
by Ross Poole | Sep 15, 2015 | Leases, Real Estate, Torts
When Guests Become Trespassers
House Guests are Like Fish
A few weeks ago, a friend of mine offered to let me use his lake house for a weekend getaway.
I was blown away by the generosity of the offer. As I talked to him about it, he told me that he often lets friends and acquaintances use the property (nice guy right!). He was also considering using a vacation rental website called airbnb.com to make extra money.
As lawyers, we are trained to always worry about the potential problems the best laid plans can bring. This time was no different. What if someone he let use the place stole things from the property? What if the person he invited in refused to leave on time?
The truth is that he hadn’t thought about what would happen if things went wrong. When pressed on the issue, he said that he would just call the police and let them handle it.
Unfortunately, when dealing with a once invited guest, the police will often not intervene. You see, once you invite someone on to your property, the police see the issue as a civil one, rather than a criminal trespass (like a robbery).
This is especially the case for an overnight or multiple night visit, a guest can argue that they are tenant and must be afforded the protections of state tenant laws.
Law enforcement officers are trained to be aware of tenant rights and so are wary of getting involved in what may be a landlord-tenant dispute.
With companies like airbnb.com and couchsurfing.com becoming common place, there has been a boom in these types of incidents around the country.
If you find yourself in a situation where an invited houseguest has become an unwelcome intruder, several legal principles come into play.
If you can convince law enforcement officials that the unwanted guest is not a tenant, you can have them removed from the premises as a trespasser.
Police will often consider a variety of factors in determining whether someone may have tenant rights. For instance: has the intruder brought personal property there (like clothes, furniture or other possessions)? Do they have personal care products, such as a toothbrush, there? Have they paid rent or bought groceries?
The length of the stay is a factor, but it is not conclusive.
If the police will not arrest them and they will not leave voluntarily, you may have to bring a lawsuit to get a court order for ejectment. Ejectment is when the court orders the sheriff to physically remove someone from a property and to lock them out. That is usually the remedy if someone is a squatter or trespasser, rather than a tenant who has overstayed their lease.
Once they are removed from the premises you can also bring a claim for civil trespass to recover for any damage that was caused by the unwelcome intruder. To state a successful claim for civil trespass, you will have to show:
(1) your lawful possession or right to the property;
(2) defendant’s wrongful act of trespass on the property; and
(3) damages caused by the trespass.
Unlawful Detainer / Eviction:
If someone is considered a tenant, you may have to seek a court order in unlawful detainer or eviction. The legal proceeding is sometimes called different things in different states. Remember that someone can be considered a tenant even by an oral agreement and you do not always need a written lease. If you can’t get rid of a house guest to the point that you need to take legal action, you should call a lawyer.
Unlawful detainers are court proceedings that can be time consuming and technical in nature. An unlawful detainer proceeding is usually initiated by serving a notice to quit (to get out) with a mandatory grace period. The Notice to Quit period can be anywhere from three to sixty days, depending on the situation.
Statutory requirements for service of the notice to quit must be strictly complied with.
Next, like civil actions generally, unlawful detainer actions are initiated by the filing of a complaint, issuance of a summons, and service of the complaint and summons on the defendant. The “tenant” will than have an opportunity to respond and a hearing will be held to determine whether eviction is appropriate.
If you find yourself in this situation, it’s best to consult with an attorney who is aware of all the statutes and ordinances applicable to unlawful detainer proceeding in your state. If you do it wrong, you can lose rights.
You may be able to use a paralegal or eviction processor for less than a lawyer. But those companies are best when you have a written lease and the tenant failed to pay rent. Other situations have trickier laws.
If the unwelcome guest leaves with any of your personal property, you may also have a claim for civil conversion. The easy way to understand conversion is that it is the civil damages claim for someone who stole your property and won’t give it back.
The legal definition of Civil conversion is: the unauthorized assumption of the right of ownership over the personal property of another to the exclusion of the owner’s rights. In other words, they took your property without your consent, or kept it after you withdrew your consent, and then they refused to return it when you asked for it back.
To win a claim for civil conversion, you will have to show:
(1) your ownership or right to possession of the property;
(2) the defendant’s conversion by wrongful act inconsistent with your property rights; and
(3) damages (more often than not, this is the value of the property taken).
Ultimately, allowing someone to use your property for any period of time has risk, particularly if you allow them to stay for an extended period. Before you start letting acquaintances use your property, or before you turn to companies like airbnb.com or couchsurfing.com to make some extra money, make sure aware of the risks so that you can make an informed decision. One squatter can cause substantial headaches, both financial and otherwise.
And that’s not even scratching the surface of what happens if someone gets hurt or victimized while staying at your place…. But that’s another blog post.
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Lawyer at Bellatrix PC
Mr. Poole is a trial lawyer in the areas of business, employment and real estate. In any legal dispute, you would rather have him on your side than against you.