What are appropriate actions if the tenant and his guest are in violation of the lease?
Despite the landlord’s policies and rules, it is not uncommon for a tenant to move another person into the rental unit. A landlord should therefore be prepared with a plan to address the issue of an unauthorized occupant.
A landlord should first understand the issue by asking the tenant for an explanation of why an additional person is living in the unit. There is always the possibility that the tenant misunderstood the terms and conditions of the lease agreement. The landlord should restate lease terms and conditions, including the landlord’s policy on occupancy use and limits, the guest stay policy, and the legal remedies available to cure the lease violation.
If the original named tenant wants to finish his lease term with the additional person living in the unit, the landlord by terms of the lease agreement has the right to require the guest to complete a rental application and submit to the landlord’s written standard tenant screening. The guest/applicant will be required to pay standard application and screening fees stated in the landlord’s rental policies.
If the guest/applicant qualifies under rental criteria, the landlord should approve the application and continue the tenant orientation process. Since the terms and conditions of tenant’s lease have been changed, it would be advisable to terminate the tenant’s original lease and execute a new lease with both the original and new occupants being tenants. The addition of another tenant may justify an increase in rent. If so, landlord and tenants must agree to the new terms and conditions.
The security deposit furnished by the original tenant may be assigned to the new lease, but the new lease should specifically state that this is agreeable to the original and new tenant. If the security deposit amount is being increased, either because the security deposit was not previously at the maximum allowed by law or because an increased rent allows a larger deposit, the appropriate new security deposit amount can be collected from both tenants and the original security deposit amount then returned to the original tenant.
If the guest/applicant doesn’t qualify to rental standards, the landlord may reject the applicant. The landlord must follow requirements for adverse action notification under the Fair Credit Reporting Act (FCRA).
The landlord can serve the tenant with a notice to cure or quit due to the breach of the lease by the tenant moving in unauthorized occupants. If the problem is not cured to lease terms (i.e., removing unauthorized occupants) or vacating the unit within the number of days specified in the notice, the landlord may terminate the lease agreement and file an unlawful detainer (eviction) action. Some states may allow landlords to terminate a tenancy with an unconditional quit notice that does not give the tenant an opportunity to correct the problem.
A landlord could file for eviction of the named tenants and any John and/or Jane Does residing in the rental unit for breach of lease for other reasons, such as rent defaults, disturbance, etc. If the landlord is awarded a judgment for possession, all occupants would be removed from the rental unit.
If the occupant poses a threat to people or property, in some states there may be provisions for an accelerated notice period for eviction.
If the tenancy is month-to-month, a landlord can serve the appropriate written notice for termination of tenancy and avoid the need to prove a lease default.