Unauthorized Occupants: The Hardest Eviction To Win

“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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