REDBOOK Blues – Unauthorized

by John Gillespie, WAK Property Management    

You have heard it is easier to get forgiveness than permission. For most of us, this line is a humorous aside; unfortunately, it is a way of life for some residents. For those residents that live by this mantra, you may want to remind them that Paragraph 2 of the TAA Lease Contract states that the apartment will only be occupied by residents and occupants listed in that paragraph. All others require the apartment owner/operator’s permission.

It states:

Anyone not listed here cannot stay in the apartment for more than _______ consecutive days without our prior written consent, and no more than twice that many days in any one month. If the previous space is not filled in, 2 days total per month will be the limit.”

From friends to family, residents who fail to get written permission for additional occupants are in violation of the TAA lease. Whether it is a child, cousin, boyfriend/girlfriend, long-lost college roommate, or out-of-work coworker, residents must seek your written consent. It matters not if they are COVID refugees, holiday guests, summer vacation, witness protection, or benevolence; they still must get you to agree (in writing) to allow the person to occupy the unit.

The keywords in Paragraph 2 are “prior written consent.” You must give the resident permission in writing before they can allow anyone (regardless of age) to occupy the rental unit who is not listed as a leaseholder(s) in Paragraph 1 or as an occupant in Paragraph 2.

This provision exists to prevent residents from harboring criminals, sex offenders, illegal aliens, dead beats, lovers, displaced college-students, etc. More importantly, this lease provision protects owners, onsite staff, and other residents from potentially harmful actions or dangerous situations when a resident hides someone in their unit.

When you find out you have an unauthorized occupant, you have two options:

  1. You can require the leaseholder(s) to have them leave the unit. If the leaseholder(s) fails to comply, they (the leaseholder) are subject to eviction
    1. You cannot “evict” the unauthorized occupant. They are not in possession of the rental unit. The unauthorized occupant has no legal right to be in the unit; in effect, they are trespassing.
  1. You can allow the person to stay, but TAA’s general counsel highly recommends that they do so on the condition that they complete a rental application and successfully meet your rental criteria.
    1. To minimize potential risk, TAA’s general counsel recommends that owners or managers should require all adults who will be occupying the dwelling to at least fill out a rental application–even if they are going to only be listed as an “occupant” who does not be sign the lease as a resident.

Having the unauthorized individual complete a rental application may give you a clue as to the reasons why they are not on the lease. Those reasons include the following:

  • They skipped on a previous owner.
  • They trashed out the previous owner’s dwelling; or
  • They have a serious criminal record

Having the unauthorized individual complete a rental application also provides you with essential information such as:

  • Information about their vehicles;
  • their telephone numbers;
  • work information; and
  • emergency contact names and addresses.

TAA’s general counsel adds, “the mere fact that you require the occupants to fill out the rental application will have some “preventive medicine” effect to turn away applicants who know that their occupants have serious or dangerous “skeletons in their closet” which may be discovered if you check out occupants as well as residents.

Also, Paragraph 19.4 of the TAA Lease Contract gives owners/managers the ability to exclude anyone from the apartment community who is violating the lease contract or any community policies or rules. Therefore, you have the right also to prevent the unauthorized occupant from remaining on the premises.

On rare occasions, a police officer or other law enforcement agent may demand that you allow an unauthorized occupant entry to the premises.  For instance, the unauthorized individual may have a driver’s license or other government-issued identification that shows a unit for which they are not on the lease as their “legal” residence.  In this case, the industry best practice is to allow the unauthorized person access to the unit.  Afterward, immediately, or, as soon as, possible issue a lease violation to the leaseholder and begin eviction proceedings.

Ben Franklin once remarked that houseguests, like fish, begin to smell after three days. You may want to impart Ben’s wisdom to some of your residents—especially those whose COVID guests are still hanging around. Bottom line, it is the responsibility of the leaseholder(s) to make sure that their occupants and guests comply with all rules and policies of the community.

John Gillespie, WAK Property Management, is the AATC Government Affairs Committee Chair. For more information, contact Perry Pillow at ppillow@aatcnet.org.