Each Spring and Fall, I get the privilege of helping to teach seminars across the state. The crowd of participants is usually a smattering of landlords, social workers and attorneys. I'm always nervous to start - they ask really good/tough questions! But I'm so glad that people come, participate, and take the knowledge we have to spread out into their communities.
I always come back with a new appreciation for the difficulty of being a landlord. We serve landlords year-round (our daily clients are tenants AND landlords!), but walking a newbie through nuances of an the course of an entire tenant-landlord relationship really demonstrates the level of skill it requires to be a careful landlord. Good landlords are hard to come by, and we meet a lot of great landlords at our seminars.
So, today I'm taking on the landlord's perspective in a situation where a tenant has a long-term guest.
Now, to be clear, not all landlords care if a tenant has a long-term guest, and it's not too common for the laws to have an opinion. Landlords: you don't have to care* if a tenant has a long-term not-on-the-lease guest, but often you do. This is for those of you that do.
Before you start: If you wish to have control over who lives in a house, you need to say something about that in a lease.** You'll want to consider:
- How long can a guest stay? Is that consecutive, or over the course of... a year?
- How many guests are allowed?
- You can't prohibit guests entirely, because that that messes with your tenant's right to "exclusive possession."
- If you are looking for a lease to use, Wisconsin Legal Blank sells them, and has language about guests. Note that there are no "standard leases" for Wisconsin, and if you keep leases around, make sure that they stay up-to-date with future law changes.
- If you don't have any rules about guests in your lease, you can't enforce any rules about guests.
Wisconsin Laws: These laws are not very stringent, and so it's not too likely they'll be the ones setting the limits.
Wisconsin Occupancy laws: Wisconsin requires that sleeping areas include 400 cubic feet of space for each occupant over 12 years of age, and 200 cubic feet for each person under 12 years of age. A sleeping space may be a living room, den, or dining room as long as there are adequate fire escape routes. It does not include hallways, bathrooms or kitchens.
- Example: If the room has average 8 foot ceilings, the requirement would be for a 5'x10' sleeping space for an adult or a 5'x5' sleeping space for a child. SPS 379.09
- Local Occupancy laws: Most local bodies lost their rights to pass more restrictive occupancy laws with the passage of 2013 Wisconsin Act 76.
- Zoning Board: Depending on the neighborhood, there are zoning codes that limit the number of people (or relationship between people) who can live in rental dwellings. Check with your local zoning board.
Landlord rules: Under Wisconsin law, landlords are allowed make their own occupancy rules, if those rules are based on the number of people that can live in certain units, and not based on family status. In your rules, you can't give tenants less than 400 cubic feet of space, but you can require that they have more space than that. Also, you can't tell people where to sleep within their unit.
- Example of a legal occupancy guideline: No more than 6 people can occupy a 2 bedroom apartment.
- Example of an illegal occupancy guideline: Only families with 4 kids or less can occupy a 2 bedroom apartment. (Why? You can't say that only families can live there).
Possible Landlord Actions: If you find extra folks within the unit, what you can you do?
- Check in with the tenants: It's really important to check with the tenants about extra people in their unit, because it is so, so easy for an outsider to misunderstand what's happening inside a home. So, ask what's going on via letter or email (or call and then put the contents of your conversation in writing, to have a paper trail). Say that you've heard of someone living there, and see how the tenant responds. For example: once a neighbor confused the nanny with an extra undisclosed tenant, when really the nanny just arrived daily to care for the child, and didn't really live there.
- Work with your tenants to remove the guest: Sometimes, the tenants don't want that person there either, but need some help getting them out. We wrote a post a while back, ("Dealing With Unwelcome Guests") just for those tenants. You might want to print it out and hand it to them, and if they have questions, they can contact us, too. In those situations, tenants (legally) become the landlord for that unwanted guest, and can go through the process of giving notices and evicting the guest, but may need some wiggle room in order to have the time to go through that process.
- Eviction Notice because of unwanted guest: A landlord can give the tenant an eviction notice (like a 5-day or 14-day notice), for breach of lease, because of the extra person. (Assuming you have that clause in your lease, which you should, if you have opinions about such things.) It can be very challenging to prove in court that an extra, unwanted resident lives there, so make sure that you have your ducks in a row before you take it to eviction court.
- Eviction Notice because of anything but the unwanted guest: A landlord can give the tenant an eviction notice (like a 5-day or 14-day notice) for other problems that are easier to prove, such as late rent. On the notice, you might say that you are less willing to work things out than usual, because of the extra person residing in the house.
- Non-Renewal: As recently discussed on this here blog, landlords rarely have to give reasons for issuing a non-renewal (although, for the record, an unauthorized person living there sounds pretty legit to me). So you could end a month-to-month tenancy because of this, or explain that you don't plan to renew the annual lease.
- Add the extra person to the lease: A landlord can ask for the tenant to have the extra person apply to live there, if they are already residing on the property. This course of action has some benefits...
Why would a landlord want to add the extra person to the lease?
- Lease Adherence: So that the unauthorized person will follow rules and be held accountable to the lease terms.
- Safety: An application gives you a chance to look into that person's background, for safety reasons.
- Rent? Not always: If your original tenants are already managing the rent pretty well, you might not need to look into the new person's financial situation, so much. If tenants are joint and severally liable on the lease, than the original tenants can still be held responsible in the same ways as before. (More here about joint and several liability)
How can a landlord prove that there are extra people in the unit? If you plan to evict for this offence (and you have a clause in the lease that makes it so you can), then you need to be able to prove that there is an extra unauthorized resident once you get to Small Claims Court. Small Claims Court tips/explanations are here, but generally, you have to give a little more proof than the other person in court. (But we aren't attorneys! This isn't legal advice! Just some brainstorming). Here are some ideas to prove the unauthorized resident:
- They say so: The tenant or guest says that the guest is living there. Maybe this happens when you call up and ask what's going on? Maybe it's because the maintenance guy shows up to make a repair and the guest says, "I live here."
- A neighbor says so: If a neighbor is able to tell you when the guest came and went, that might help. This, on its own, seems a bit thin, so make sure you have other ways to show that the guest is living there.
- Police report: Many times, a landlord finds out about an unwanted extra guest because there's a problem. If it's a small one (say, a noise complaint), but big enough for the police to come, than you can get a copy of that police report through an open records request with your local police department. This will have more weight if the police asked the unwanted guest his/her address, and it's listed as your property.
- Water usage: If the water usage jumps dramatically, it might show that there are additional people living in the property. Or the toilet might be broken.
- Proof of other residence: If you are fairly certain that the unauthorized resident is living in your unit, you might ask for proof that they have a different place to live. This might be a lease in their name, or a utility bill. If you have asked for this proof, in writing, and no one can show the permanent residence of this person, that might help your cause.
- Mail: This is a tricky one, since rights to mail is federally protected. However, if there's a name on the mailbox that is unfamiliar to you, then it might show long-term residency (although it might not - it could just mean that my sister is in the Peace Corps and I receive her mail, or some other mail-receiving agreement is in place).
- What things look like inside the unit: If you give appropriate notice to enter the unit (rules of landlord entry are here), and go in, to inspect and look around, and find things that obviously say that someone else is living there (5 extra beds, for example), then that could be part of your case.
- Don't do anything illegal: It can be tempting to go into a unit without notice, or surreptitiously pull out some mail from the mailbox, but if you are sneaky, than the information you get looks dodgy, too. If your goal is to look reasonable, than illegal actions definitely make you look less reasonable.
* There is one reason where you'd have to care, though: if that extra person was putting your other tenants in danger, somehow. If you knew that the long-term guest was dangerous, and didn't work with the tenant who was hosting him/her to get that tenant out, it might be possible for you to be held liable.
** Weirdly, under Wis. Stat. 704.09(1), month-to-month tenants or tenants at will (where the payment arrangements are less regular) cannot sublet without the landlord's consent, even if there is no lease, and even if the lease doesn't say anything about subletting. Now, subletting is different from having a long-term guest (sublets pay; guests not so much), so in the end, it may not matter. Generally, landlords aren't informed about illegal sublets, so whether it's sublet or a guest, you'll still need to prove that the unwanted person is there, and take whatever action is right for you.
Hi! Did you know that we are not attorneys here at the TRC? And this isn't legal advice, either. If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.