Unauthorized Occupants: The Hardest Eviction To Win

Posted by Stephen Marshall on

“There he is again! This is the fourth day in row!” Becky says, as she notices a tall red-haired man leaving Unit 58. The man gets in his car and drives off, presumably going to work. Becky manages a 90-unit apartment complex, which is small enough that she knows most of her tenants fairly well and is able to keep up with the latest news around the property. While there have been no major issues lately at the property, Becky keeps noticing this tall red-haired man leaving Unit 58 each morning.

Her tenants have told her that the man comes to the complex around 8:00 at night, and then Becky sees him leave in the mornings. While the tenants don’t see him every night, and Becky doesn’t see him every morning, it's clear to Becky that the man is staying at the property regularly.

“That’s the last straw. She knows she can’t let him live there with her”. “She” is Gina, the tenant who signed the lease for Unit 58. Gina is a single-mother with a five year-old son. She has lived in Unit 58 for about four months with a 12-month lease. Her lease allows her to have guests, as long as the guests do not disturb others or otherwise break the community rules. However, the lease explicitly states that Gina and her son are the only authorized residents. In Becky’s mind, Gina is clearly violating her lease by allowing this man to live there.

Becky gives Gina a notice that she must remove the unauthorized resident from her unit or else be evicted. The next day, Gina comes to the office and asks to talk to Becky about the notice. Gina explains that the man is her boyfriend and admits that he spends the night with her on occasion. She is adamant, however, that the man does not live with her and maintains a separate residence with his mother on the other side of town.

Becky knows that Gina is not being fully forthcoming about the situation, and asks that Gina make sure that the man is not staying there and provide proof of residency for the man. A few days later, Gina brings in a letter from the man’s mother stating that he lives with her and provides the address. Wearing her detective hat, Becky looks up the address on the local PVA records, and sees that the property is listed in the name of the mother, with no mention of the son.

The following Monday morning, Becky pulls in to the complex parking lot only to meet the man pulling out.  Over the next month, Becky sees the man leaving Unit 58 two or three times a week. The word from other residents is that the man continues to show up around 8:00 at night several times a week. Several of them make written complaints to Becky about the unauthorized resident.

At this point, Becky has had enough. She knows that Gina is lying, and is tired of them blatantly breaking the rules. She gives Gina an eviction notice for having an unauthorized resident. A few weeks later, with nothing having changed, Becky goes to court for the eviction hearing. Gina, the red-haired man, and his mother all appear to dispute the eviction.

When the case is called for hearing, Becky is sworn in and testifies that she sees the man leave the complex several mornings each week. She shows the judge the lease agreement that authorizes only Gina and her son to live in Unit 58. When she tries to tell the judge about what the other residents have told her about the man coming to the unit most nights at 8:00, the judge stops her and tells her that such statements are not admissible as evidence unless those residents are present to testify. “Hearsay” is the specific word used by the judge.

Next, Gina testifies that the man is her boyfriend and that he does stay with her on occasion, but never more than a night here and there, averaging once a week. The red-haired man gives similar testimony, and says that he resides at his mother’s house and has done so for the last year. The mother then takes the stand and confirms that the man lives with her and helps take care of her.  

At the end, the judge states that the burden of proof in the case was on Becky to prove by a majority of the evidence that the man was living in Unit 58. The judge explains that the evidence was clear that the man visited there on a regular basis, but Becky had failed to prove that he lived there. As a result, the judge ruled for Gina and dismissed the eviction.

Dejected and unsure of what to do next, Becky reached out to a local attorney who runs a fantastic website, kylandlordlaw.com. Here’s what he told her:

  1. Unauthorized occupant evictions are the hardest evictions to win. The line between a guest and an occupant/resident is thin and uncertain. At some point, a guest who spends the night regularly will cross that line and become a resident, but when that happens is not defined and beyond anyone’s ability to predict.  
  2. The burden of proof is on the person bringing the case to court. In evictions, the landlord must prove his/her case by a preponderance (majority) of the evidence. You almost always know more than you can prove, but evidence and proof are what matters in court.  As I’ve heard many judges tell landlords, “if the evidence is equal on both sides, you lose”. In order to win an eviction, you must have better evidence than the tenant.
  3. You cannot count on tenants to tell the truth in court. In fact, you should expect them to say whatever is necessary to avoid the eviction.
  4. A manager may not testify about the observations of other people. Each person in court may only testify as to what he or she has witnessed. Additionally, signed statements of others, even if notarized, are typically not admissible as evidence in trials. So, if another resident is critical to proving your case, make sure you bring them to court to testify. While other residents will often not want to get involved, make it clear that you cannot take action on their complaints without their court testimony.
  5. It is wise to place restrictions on overnight guests in your lease agreement. You should specify how often a tenant is allowed to have overnight guests. The content of the restriction is up to you, but having a restriction creates a contractual definition of when a “guest” crosses over into an “occupant” or “resident”.
  6. If the tenant admits to having an unauthorized occupant, you can win the case. However, you will have to prove that the person lived there prior to the eviction notice and that the tenant failed to remove him/her by the time the notice expired.
  7. A person’s receiving mail at the tenant’s address is not proof of residency. I'm a fan of sending the "guest" a restricted delivery mailing that must be signed for. This helps prove that the person not only receives mail at that address, but also was there to sign for it. However, a number of judges have reasoned that there are legitimate reasons that a person would have mail sent to someone else’s address. So, a guest using your tenant’s address as his/her mailing address is evidence of residency, but that fact alone is often not conclusive. You need more.
  8. The inability to provide proof of a separate address is not conclusive. If the guest is (or claims to be) homeless, he/she will not be able to provide proof of residence at a different address, but that does not mean that he/she resides with your tenant. Like the mail issue above, the guest's inability to document that he/she lives somewhere else is a fact that helps your case, but does not conclusively prove your case. On the flip side, a guest who can produce a current lease at a different address has not conclusively proven that he/she is not living with your tenant. Remember, however, the tenant is not required to prove anything; the burden of proof is on the landlord.
  9. Pick your battles. Truly bad residents will eventually commit clear lease violations that will result in a winnable eviction case, so don’t go looking for cases that you can’t win. Don't let your ego or a power struggle with a resident push you into an eviction case that you can't win. Unless your lease has clear restrictions on when a “guest” becomes a “resident” and/or the resident has admitted that the guest lives in the unit, I generally advise landlords to leave the situation alone unless the guest is disturbing other residents. If the guest is creating a disturbance, you can evict for the disturbance rather than the unauthorized occupant, which is an easier case to prove.

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46 comments

  • Hi when I found my current living apartment I was so happy specially because the landlord along with the lease agreement made me sign a document regarding not speakers, not loud music allow. But starting November last year the tenant in front my apartment installed a home sound system , since them everything started.I have called the police many time, since November last year until now. But last time police told me to take the situation to my landlord. Which I had but my building landlord is not responding his extension phone and not responding to voicemails I left.I have spoke to different people there but him. This is Two rooms apartment and we’re only using one due to the loud noise created by my neighbor sound system. It’s been a year trying to get in contact with the landlord through phone calls and email. Because of this situation I started getting anxiety my doctor prescribed me a medication and I’m visiting a therapist. I have my 311 requests paper work From my different calls and videos I recorded from my apartment showing my neighbor doing karaoke at 2:00 am on a Tuesday Also have prove of me trying to reach out my landlord for an entire hole year

    Jimmy on
  • I sympathize with all the landlords who are unable to evict bad tenants due to the moratorium imposed by the states. There is a lot of bad tenants that are abusing the moratorium and refusing to pay their landlords. All the landlords are barely making ends meet, yet they are obliged to pay their mortgages, upkeep their properties, pay utilities, repairs, property taxes, etc. and yet no one is protecting or helping them. The burden is put on the landlords and while the bad tenants are being protected for not doing their part. If the landlord is Where is justice in this? We want to empathize with renters who lose their jobs, loss of income, injury, etc. due to Covid-19, but renters should be required to provide some sort of proof to their landlords if they are unable to pay. If tenants are good, why would any landlord want to evict them? If the government imposes a moratorium on the landlords to avoid renters from being evicted, I think it is only fair that the government entities also need to exempt or pro-rate property taxes for the landlords as well. There can only be justice when everyone is doing their fair share and avoid imposing the financial burden on one entity or targeting any group of people.

    Percy on
  • My first week my neighbor realized that am not from the area. She apparently didn’t like my fiance. He and I got into an argument. Nothing physical , no police report from me was signed, but the manager banned him! Then the day after Christmas the manager called and said she was notifying that my fiancee was on the property and inside my apartment when he was banned, she said she had four tenants that said he let himself into my apartment. All of this was false I did not want a chance losing my apartment. So he was staying at his mother’s, we had not been living together in the apartment either we had planned to do so after our wedding. Then I would add him to the lease, obviously. In the phone call after Christmas day she stated she was getting a criminal trespass on him due to the tenant next door in three others that said they saw him on the property. I feel like I cannot have any guests over in fear that someone will say it is my fiance. We plan to get married this spring I’m not sure if they have a problem with him or me I haven’t been here a full month and I’m already getting threatened with eviction. What do I do what can she do? I’ve spoke to no officers of sign no papers or complaints saying he has harmed me in any way, so can she legally ban him without me complaining or getting a EPO or paperwork stating I didn’t want him around? Need help ASAP!!!!!!

    Dman on
  • I’m immigrant and small landlord having only one multifamily house. Me along with my father purchased this house and hoped the rent would help pay the mammoth mortgage including property taxes.
    Unfortunately I got a worst kind of tenant and even during good times tenant was either late or holded 100 or 200$ and we ignored. In July of 2019 we verbally informed tenant(whose lease was already expired) that we will need the apartment back in early or mid 2020. We again reminded them this in Sept 2019. Tenant never answered or acknowledge. Then 2019 sept tenant paid only half rent while in October paid nothing. Nov to Feb tenant paid rent but refused to pay sept half and oct rent and told us to use security deposit which we didn’t agree. In February 3rd week tenant was asked to hand over the apartment by end of April which she simply refused and then asked for a notice. We paid the attorney who gave official notice in 3rd week of February asking to leave the apartment by end of April 30th. Tenant didn’t respond and retaliated by stopping all rent payments since then, also refused to communicate any further and blackmailed us threatening to call the police and claim harassment, so we have no communication since then. She also have unknown people living there without our approval(at least 2 couples(2 men 2 women in addition)). There is a lot of slamming noise on wood floor upstairs even at night 12 AM.
    The unjust moratorium came in March and then came April and tenant still there. In July tenant was seen loading her stuff on truck, but the unknown people still here till today Sept 2020. 2 days ago there was loud noise upstairs in tenant apartment kinda like hammer, and we were having water leaking out of electric fixture. Despite of knocking door on 3 different occasion, nobody came to open the door while there were heavy foot steps noise upstairs.
    Tenant often come after few weeks and stay for a day or 2 and leave. We suspect she is collecting rent from these unknown people, while we don’t get a dime. All that plus we still have to pay for maintenance, taxes, mortgage, insurance, etc etc. The Federal, State and City govt along with Courts have shut the doors of justice on people like us and left us on the mercy of rogue tenants like this. Despite of calling 311 and courts several times, and despite of writing emails to my senator, mayor and governor explaining how much mentally torture kind of situation me and my family going through, nobody is there to help.
    Don’t get me wrong, I’m sympathetic with good responsible tenants as we too were once tenants and never gave any trouble to our landlord(our landlord actually was emotional when we were leaving as we were like a family despite both of us from different racial, cultural backgrounds).

    Waj on
  • Hi Jennifer. These questions are not able to be quickly answered in a blog comment. I’d be glad to offer my consulting services to you on this and any other issue with your tenants. Feel free to e-mail me at smarshall@tripleslaw.com if you’re interested.

    Stephen Marshall on

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