Guest Policies: Setting Boundaries With Roommates

Roommates can set guest rules they agree on, subject to enforceable lease terms and state occupancy rights, such as New York's Roommate Law. A guest who stays past an enforceable lease limit, or moves in without required landlord approval, may be an unauthorized occupant, and on a joint lease (one lease all of you signed) the landlord can treat that as a violation by every tenant, whichever roommate invited the guest, and try to evict everyone if it is not fixed. When a roommate's partner has effectively moved in, check state occupancy rights before deciding on a cost share, a request to add the partner to the lease, or asking the partner to leave.

Start with what your lease allows

Read the lease before you write house rules, and note three things:

• The guest limit. It may count consecutive nights, total nights in a month or year, or both.
• Who may live there. California's Department of Real Estate (DRE) lists the number of people allowed to live in the unit as a term a rental agreement should state.
• What the clause requires past the limit. That can be the landlord's written consent, registering the guest, or an application to add the person.

Your house rules can set a lower guest-night limit if it does not conflict with state occupancy rights. They cannot override enforceable lease restrictions, because an agreement among roommates binds only the roommates who sign it, not the landlord.

Local housing codes can also cap how many people may live in the unit; see occupancy limits in rental housing. For how landlords enforce guest clauses, see guest policies in rental leases.

What to put in your roommate guest rules

Put the rules in your roommate agreement so every roommate signs the same terms:

The damage rule matters because the landlord does not have to work out who invited whom. The DRE's tenant guide says a tenant must repair damage, beyond normal wear and tear, caused by anyone the tenant is responsible for, including guests. Michigan Legal Help, a statewide legal self-help site, adds that on a typical joint lease the landlord can collect the full cost of damage from any one roommate, even if another roommate caused it and even if the roommates agreed to split costs. A signed rule that the host pays gives the other roommates a basis to recover that cost. For kitchens, bathrooms, and other common areas, see shared space rules for roommates.

When a guest becomes an unauthorized occupant

The DRE defines a guest as someone staying at a rental unit at the tenant's invitation, without the rights of a tenant. That status can change. TexasLawHelp.org, the state's legal aid self-help site, says a guest can become a tenant or subtenant even without a lease, especially if the guest has lived there continuously, contributed to the household financially, or used the address for mail. Unless state law permits the occupancy, a guest who stays past an enforceable lease limit without the landlord's approval is an unauthorized occupant, and keeping one breaks the lease.

Michigan Legal Help says a landlord can try to evict all the roommates on a joint lease for a violation even if only one of them is responsible. How it plays out depends on your state:

• Florida: The landlord must give written notice and 7 days to correct a violation such as an unauthorized guest, for example by having the guest leave. If the same violation happens again within 12 months, the landlord can file for eviction without giving another chance to fix it (Florida Statutes section 83.56).
• California: The DRE explains that adults who move in without being on the rental agreement can be added to an eviction case as "unnamed occupants." Removal depends on the papers served and the occupant's response. If an occupant lived there before the case began, is not named in the eviction order, and was not served a Prejudgment Claim of Right to Possession form, a timely claim asserting a right to stay can stop their removal pending court review.
• New York: Under the Roommate Law (Real Property Law section 235-f), a tenant who is the only tenant named on the lease may live with immediate family, one additional occupant, and that occupant's dependent children, and must give the landlord the occupant's name within 30 days after the occupant moves in. On a lease signed by two or more tenants, tenants plus occupants, not counting occupants' dependent children, cannot outnumber the tenants named on the lease. In either case, at least one tenant or a tenant's spouse must use the unit as a primary residence; qualifying occupants need no landlord approval or addition to the lease. So while every named roommate still lives there, a partner who is not a tenant's immediate family and moves in as an extra adult is not covered by that law.

If a notice arrives, fix the problem within the notice period and keep proof, such as the date the guest left or the landlord's written consent. Our guide to the cure or quit notice explains what the notice requires.

When a roommate's partner has effectively moved in

A partner who sleeps there most nights, keeps belongings there, and gets mail at the address may already be over the lease's limit. Raise it early, with the lease's guest clause in hand, and first check whether state law allows the partner to stay without landlord approval or joining the lease. Otherwise, consider these options.

Option 1: Share costs and stay within the lease

If three roommates split a $270 monthly utility bill, each pays $90. If the household agrees to count a partner who stays five nights a week as a fourth user, the bill divides by four: $270 / 4 = $67.50 per share. The host roommate pays two shares, $135, and the other two roommates pay $67.50 each.

A cost share does not change an enforceable lease night limit: if the partner exceeds that limit without landlord consent or a legal right to stay, the household is still in violation. Rent is also different from utilities: the DRE describes a person who moves in with a tenant and shares the rent as a subtenant, which requires the landlord's permission when the lease bars subletting. The host roommate then acts as that subtenant's landlord.

Option 2: Ask the landlord to add the partner

The landlord decides whether to approve the partner, and it may ask for an application and run a screening before offering a new lease or a written amendment for everyone to sign. On a joint lease, a partner who signs becomes responsible, like each of you, for the full rent and any damage, so update the shares in your roommate agreement at the same time. Our guide to adding someone to your lease walks through the process.

Option 3: Ask the partner to leave

TexasLawHelp.org says you can ask a guest to leave without an eviction, and police can arrest a guest who has no legal right to be there. Police will not arrest a tenant for trespassing, though, because that is a civil matter for eviction court. You also cannot evict a roommate who is on the lease; Michigan Legal Help notes that eviction applies only between a landlord and a tenant. In practice, ask the roommate who invited the partner to set a move-out date in writing. Court process is required if the partner is a tenant, subtenant, or another occupant protected by state law. In New York, a roommate or landlord must use court process to remove someone who has lawfully occupied the dwelling for at least 30 consecutive days, even without a lease or rent payments (Real Property Actions and Proceedings Law section 768).

If your roommate refuses, your remaining steps are the same as for any roommate dispute: mediation, asking the landlord to enforce the lease (which can bring a notice to every tenant), or negotiating your own release from the lease.