Are Occupants Responsible for Paying Rent?

Usually not, if the person lives there only with the tenant's permission and has no rental agreement with you. An enforceable oral rental agreement can make the person a tenant who owes rent without signing a lease. If you want an occupant to owe rent, screen them and add them to the lease as a co-tenant. Be careful about taking rent from an occupant directly; in Oregon, for example, doing so knowingly costs you a faster way to remove them after the tenant leaves.

How is an occupant different from a tenant?

A tenant rents the unit from you under a lease or rental agreement and has the right to live there for the rental period. California's official landlord-tenant guide adds that when a lease names more than one tenant, they are all co-tenants. Here, an occupant means someone who lives there with the tenant's consent, and sometimes with your approval, but has no rental agreement with you.

New York writes the line into its Roommate Law, Real Property Law section 235-f. It defines an occupant as a person, other than a tenant or a member of the tenant's immediate family, who lives in the unit with the tenant's consent. The New York Attorney General's tenant guide recognizes oral leases for apartments that are not rent stabilized, and California's guide also recognizes oral rental agreements.

Why does an occupant owe you no rent?

Your rent claim is against the tenants who agreed to pay and any guarantor who signed a guarantee.

An occupant who pays part of the rent usually pays it to the tenant, not to you. California's guide calls a person who moves in with the original tenant and shares the rent a subtenant, and it says the original tenant stays responsible for paying you the full rent. The occupant's share is a private deal between the two of them. If your lease requires your consent before a tenant sublets, the rules for approving that arrangement are in what to do if a tenant wants to sublet.

Rent demands, late notices, and claims for unpaid rent should identify the tenants obligated under a written or enforceable oral rental agreement, not someone solely because they live there.

What happens if you accept rent from an occupant?

It can weaken your position when you later want the occupant out, so treat any payment from an occupant with care. Oregon's statute shows how. Under ORS 90.403, after the tenant has moved out, you can remove an unauthorized person by giving 24 hours' written notice and then using the court's regular possession process, but only if all three conditions are met:

1. The tenant has vacated.
2. The lease barred subletting or letting someone else live there without your written permission.
3. You have not knowingly accepted rent from the person in possession.

Knowingly take that person's rent and this shorter route is no longer available. Oregon also offers a written temporary occupancy agreement under ORS 90.275, signed by you, the tenant, and the occupant. It must say that the occupant is not a tenant and does not have a tenant's rights. The tenant can end it at any time, and you can end it only for a material violation of the agreement.

Check state law before refusing a third-party payment. California Civil Code section 1947.3 requires you to accept an otherwise proper rent payment from a third party who provides a signed acknowledgment that they are not currently a tenant and that accepting the payment does not create a new tenancy. Your own notation does not replace the payer's signed acknowledgment.

How do you make an occupant responsible for rent?

Put them on the lease. The steps:

1. Have the occupant apply. Use the same application, fee rules, and written criteria you use for everyone, as described in the qualities that make a good tenant.
2. Sign a new lease or a written amendment that names the occupant as a tenant, signed by every current tenant and the new one. How shared liability works among co-tenants is covered in signing a lease with more than one person.
3. Update the deposit records to show which tenants the deposit is held for.

Adding a tenant can change other rules. In California, the Tenant Protection Act's just cause protections, which limit the reasons you can end a tenancy, cover a tenant who has lived in the unit for at least 12 months, but only if the property is covered by the Act. Qualifying owner-occupied duplexes and qualifying single-family rentals with the required exemption notice are exempt. California's guide says the threshold is 24 months if an additional adult tenant was added to the rental agreement less than 12 months earlier.

If you would rather not add the person, the lease can still control who lives there, for example by requiring tenants to name every adult occupant. State roommate laws limit how far that clause can go; see who the tenancy agreement covers besides the tenant and limits on the number of occupants.

What happens to an occupant when the tenant leaves?

The occupant's right to be in the unit comes from the tenant, so it generally ends when the tenancy ends. New York's Roommate Law says so directly: an occupant gets no right to stay after the tenant moves out unless you give express written permission. One exception matters in New York's rent-stabilized and rent-controlled units: the Attorney General's guide says a family member who lived there as a primary resident for at least two years (one year for seniors and people with disabilities) may have the right to succeed to the lease.

Losing the right to stay does not mean you can change the locks. You still need the court process your state requires:

• New York: the tenant's permission to stay does not by itself establish that someone is a licensee, a person allowed to use the property without a right to exclusive possession. If the person is a licensee and the tenant's right to possession has ended, RPAPL section 713(7) allows a 10-day notice to quit before an eviction case. Someone who rented exclusive use of the unit or a room may instead be a subtenant; after the main tenancy ends, a different proceeding and at least 30 days' notice may be required.
• California: occupants left out of the unlawful detainer (eviction) case can delay the lockout. When you file, have the sheriff, marshal, or registered process server serve every unnamed occupant with a blank Prejudgment Claim of Right to Possession. Occupants then have 10 days to file it and join the case; those who do not can be removed if the named tenants lose. If you skip this step, an occupant can file a claim with the sheriff at lockout, deposit an amount equal to 15 days' rent with the court, and get a hearing.
• Oregon: the ORS 90.403 process above applies if its three conditions are met.

The full sequence for a contested removal is in the steps for eviction proceedings.