AUTHORIZING THE UNAUTHORIZED OCCUPANT
You discover that one of your residents has an unauthorized occupant. This may happen when you are doing an inspection, you see more vehicles than usual, you get a complaint form a neighbor, or possibly someone comes into your office and pays the rent or makes a service request and is not even on the lease. How you deal with this unauthorized occupant will determine if the person can be removed from the premises or properly added to the lease.
The Discovery of the Unauthorized Occupant and Waiver
Once you discover there is an unauthorized occupant on the premises, you need to take swift action. Waiver is an important principle of Florida law and basically means that if you know of a noncompliance, in this case an unauthorized occupant, and you fail to take any corrective enforcement actions or delay these actions while continuing to accept rent, you may not be able to enforce your lease terms and have the person removed. You will in a sense have “waived’ the lease provisions by your inaction and thus modified the lease.
Your First Step Upon Unauthorized Occupant Discovery
Serve a Seven Day Notice of Noncompliance with Opportunity to Cure immediately. This notice will simply say something like “You have an unauthorized occupant residing on the premises in violation of the terms of your lease, and this person must be removed”. Whether or not you intend or hope to have this person authorized and allowed to live on the premises, serve this notice without delay. If rent is coming due and the unauthorized person is still there, AND you want this person removed, DO NOT ACCEPT RENT, as this is a lease noncompliance. But wait! This article is not about removing an unauthorized occupant but rather how to authorize an unauthorized occupant. READ ON!
How to Authorize the Unauthorized Occupant
If your policy is that all adult occupants must go through a credit and background check, you should never allow an unauthorized occupant to remain on the premises, unless the person passes your Resident Selection Criteria test, just like the current resident in the unit. The problem though is that you have given the resident a Seven Day Notice of Noncompliance with Opportunity to Cure to have the resident remove the occupant. If you give the unauthorized occupant a Rental Application, it would seem to interfere with the Seven Day Notice, and it does. On one hand you are asking the resident to remove the unauthorized occupant, but on the other hand you are giving the occupant an application which will take time to fill out and process.
- Serve a Seven Day Notice of Noncompliance with Opportunity to Cure.
- Give the unauthorized occupant an application, and take the application fee in certified funds. Give a strict deadline to the resident for the unauthorized occupant to get you back the application, and this should be no more than 3 days. Make sure it states this on the application or supplemental notice that you give with the application. The application needs to state that the lease or Resident Addition Addendum is to be signed within no more than 3 days after approval.
- Process the application, and if the occupant is approved, have the occupant sign the RESIDENT ADDITION ADDENDUM.
- If the unauthorized occupant is NOT APPROVED, let the occupant know this and serve a BRAND NEW Seven Day Notice of Noncompliance with Opportunity to Cure. If the resident fails to remove the unauthorized occupant within the seven days, call your attorney, and you will be advised on how to take further action, which may include eviction.
Why do we need to serve a NEW Seven Day Notice of Noncompliance with Opportunity to Cure if the occupant is not approved?
Nothing in the law says you do, but think about what has happened, You gave the original Seven Day Notice with Opportunity to Cure, but then you opened up the door for possibly approving the occupant. This gave the occupant an expectation that they could be approved, so therefore they did not vacate pending an answer from you regarding approval. By the time you gave them an answer, possibly 4 of the 7 days had elapsed. We think it is a good idea to serve a new notice rather than to create a defense to the resident.
Should You Authorize the Unauthorized Occupant?
This decision needs to be based on your occupancy limits which should be in accordance with HUD guidelines, and if the occupant is approved through your application process. You are under no legal obligation to approve the unauthorized occupant or offer them the chance to be approved. Remember, your resident has violated the lease by allowing the unauthorized occupant to live with them in the first place. Next it will be the new resident’s pet python.
The most common mistake made by managers is to do nothing about the unauthorized occupant. As mentioned earlier in this article, this can by waiver authorize the unauthorized occupant, thus tying the hands of the manager and preventing enforcement of the lease. Another common mistake is to ask the resident to pay you more money for rent because of the unauthorized occupant. Here you are basically saying the resident can breach the lease, but the resident must pay more for the privilege. While it is perfectly acceptable for the rent to be raised if you are going to authorize an occupant, you need to do this carefully, in writing and have it agreed to by all the parties. Often the manager is angry, tries to negotiate, delays occur, and the occupant becomes more deeply entrenched in the premises. When talks break down, the manager comes to the attorney after the damage has been done. There will be times when an unauthorized occupant begins to pay rent, and the manager accepts the rent either on purpose or accidentally due to sloppy procedures. We urge managers to never accept rent from anyone other than the actual resident on the lease. Acceptance of rent from an unauthorized occupant is going straight down the path to authorizing this person, when maybe this was not your intention.
- The Curable Noncompliance Examined PART 1
- THE CURABLE NONCOMPLIANCE EXAMINED PART 2
- THE WRIT OF POSSESSION – WHAT IT IS
- THE WRIT OF POSSESSION AND THE FULL UNIT
- WORK ORDER COMPANY POLICY AND THE LAW