One of the key terms in any lease agreement is the number of allowed occupants in the rental property. Depending on the contract, it can be as few as just one tenant or as many as the law allows. As a landlord, you have this specifically indicated to avoid unauthorized and illegal tenancy in your rental property. But sometimes, tenants fail to follow and welcome unauthorized occupants. When this happens, what do you do?
In our personal experience as property managers, we start by reviewing the lease, communicating with tenants, documenting violations, giving a Notice to Vacate if needed, and moving forward from there. So, we’ve created a comprehensive educational article that reviews what unauthorized occupants are and how we recommend you handle them. Let’s begin!
Key Takeaways
- Unauthorized occupants are individuals living in your rental who are not listed on the lease agreement.
- The risks of unauthorized occupants include property damage, nonpayment of rent, and lease non-compliance.
- Landlords in Texas should start by reviewing the lease, communicating with tenants, and documenting violations carefully before giving a Notice to Vacate, which may provide the tenant an opportunity to “cure” the violation, or moving to evict.
What Is an Unauthorized Occupant
To start, what is an unauthorized occupant? Coming from our experience in property services management, we know that an unauthorized occupant is an adult who is living in a property for a significant period without being included on the lease.
For example, you have a single tenant who invited their partner to move in, or your tenant rented out a room and has a sublet tenant without your knowledge. Simply, an unauthorized occupant is anyone living (staying for long periods and has moved in their belongings) in your rental property, but they are not a part of your legal tenant’s lease agreement, making them an illegal occupant of your property.
According to the Texas Property Code 92.010 on occupancy limits, an unauthorized tenant also accounts for occupants that exceed state or federal housing laws. Generally, in Texas, the maximum number of adults (age 18 or older) a landlord cannot prohibit is three times the number of bedrooms. For example, if you have a 3-bedroom house, then the occupancy limit is at least nine adults. Anyone exceeding that number, or a lower number specified in a valid lease agreement, is considered an unauthorized occupant. But what does this mean for you as a landlord?
We’ll get into that. But first, we need to make a disclaimer: To get definitive legal advice on everything in this article, you should always consult your state/local laws and legal authorities. We can’t provide legal advice. Now, let’s move on.
Why Unauthorized Occupants Are a Legal Issue?
Now you may be wondering, what is it with unauthorized occupants that makes them such a serious and dangerous problem for landlords and property owners? Well, it all boils down to the legal aspect of rental property businesses. Since the unauthorized occupant is not a party to the lease (the legal document that protects your rights as a landlord), it puts you and your business at risk of liability. Here are a few examples:
- Tenant Screening: Since the occupant entered your property without your knowledge, you won’t be able to conduct an in-depth tenant screening process to learn about their background.
- Property Damages: In case an authorized occupant damages your property beyond normal wear and tear, it can be difficult to hold them responsible for it, since they are not legally bound to the lease agreement.
- Nonpayment of Rent: Similarly, if there are problems regarding rent payment, it can be difficult to hold the unauthorized occupant liable since they are not legally a tenant in your rental property.
- Disregard of Lease Terms: Following the same concept, it can be hard for you to enforce any part of your lease agreement (late fees, pet policies, and other property rules and regulations) since the unauthorized occupant is never a signed tenant.
Taking these into consideration, it is critical that landlords know how to navigate such situations properly. From our personal experience, this is what we recommend:
Review the Lease Agreement First
The first thing we recommend you do is to consult your lease agreement and ensure that it has a clause that specifies who is allowed to reside on your property. Your contract should also clarify specific guidelines or policies regarding subletting or subleasing the property, or house rules for long-term guests.
Communicating With Your Tenant
If you find your tenant in violation of the lease terms regarding unauthorized occupants, the next thing that you likely should do is to reach out and communicate with them. Review with them the terms of your contract to provide context to the violation, and calmly ask them to address the issue promptly.
Documenting the Situation Legally
In the midst of everything, it is critical that you document everything. From the moment you realize your tenant has an unauthorized occupant to any and all interactions you have with them, maintain a paper trail. Keep a close record of your observations and the tell-tale signs of an unauthorized occupant (regularly parked car, personal items and belongings, etc.,) to serve as proof of the illegal tenancy.
Send a Notice to Vacate
Now, if your tenant is refusing to evict the unauthorized occupant, it’s likely time to take matters into your own hands and provide them with a Notice to Vacate. This document is the required legal notice in Texas that informs the tenant they must vacate the property because of a lease violation. The tenant has the option to remove the unauthorized person (curing the violation) to avoid eviction. As a landlord, this is the opportunity that you give your tenants to correct their violations before resorting to forced eviction for breaking the lease terms.
In Texas lease violation cases, a landlord must provide the tenant with at least three days’ written notice to vacate before filing a lawsuit, unless the lease specifies a different notice period. This notice must be delivered in person or by mail. A landlord can also post the notice to the inside of the main entry door, or under very specific circumstances, affix it to the outside of the main entry door.
When to Begin the Eviction Process
Let’s say that you have given your tenant enough time to take steps to “cure” or “quit”, yet they decide to still allow the unauthorized occupant to stay in the property. At this stage, we feel the next viable option for you as a landlord is to proceed with the eviction process. Keep in mind that this is a legal procedure that follows a strict series of steps that you need to follow to avoid disputes and potential claims of wrongful eviction. The eviction lawsuit is filed against the tenant (the person on the lease), and if successful, the court’s order allows for the removal of all occupants, authorized and unauthorized. Only a constable or sheriff–who are acting on a court-ordered Writ of Possession–can legally remove an occupant.
Partner with BMG for your Property Management Needs
Dealing with unauthorized occupants is never easy. Although it’s difficult to evict someone (even if they’re not your tenant), you need to enforce this rule to protect you and your rental business from liability and risks. In order to safely navigate such situations, you need to start by reviewing the terms of your lease agreement and align your next steps accordingly. Approach the situation with as much respect and professionalism as possible. Also, only resort to forced eviction if the tenant ignores your attempt to address the issue.
If you’re having trouble handling tenant communications and disputes, it’s time for you to partner with BMG. As one of the top trusted real estate management companies in Texas, we can take over tenant management – from lease enforcement to rent collection and even eviction procedures, if necessary. With our experience managing over 6,000 properties around the country, we are well-equipped to protect your property and your business by navigating unauthorized occupant issues promptly. Interested? Contact us today!