Hoteliers should be aware of when guests gain tenancy rights, how to avoid it and what to do when it happens.
One of the more common questions we receive from hotel operators is how to handle guests staying more than thirty days. There are a variety of reasons why hotel patrons pursue extended stays: some prefer the ease and convenience of living in a hotel (maid service, roomservice, proximity to work, etc.); often they are international visitors looking for extended accommodations but who prefer not to enter into a 6 month or 1 year lease for an apartment; others are in the midst of a life transition (employment, relationship, relocation, etc.) and need a temporary place to call home.
Whatever the reason, hotel owners and operators must be mindful of the length of each guest’s stay, as it might mean the difference between a pleasant customer experience and a costly, drawn-out legal dispute.
Avoiding the landlord-tenant relationship
Hotel guests are considered transient occupants because they usually only reside at the property for a short period. However, there are times when hotel guests stay long enough to obtain tenancy rights. This happens most often at residential hotels where guests settle into extended stays for business or personal reasons. It may also occur when a guest has been living at a residential hotel that was subsequently converted into a short-term property; here, the guest has already gained tenancy rights in the building from the prior stay and is permitted to remain.
Once a guest has gained tenancy rights, formal eviction proceedings are required to remove the guest from the property. This process can be time-consuming and costly, so it is in hoteliers’ best interests to take legally permissible steps to prevent extended-stay guests from becoming de facto tenants.
Each state has its own rules determining when a transient occupant becomes recognized under the law as a tenant. The main factor, which varies by jurisdiction, is the length of continuous stay required for a guest to obtain tenancy rights. In California, a guest automatically becomes a tenant once he/she has stayed for more than 30 consecutive days. However, the hotel has the power to prevent a guest from staying longer than 30 days and accruing tenant’s rights, which happens automatically on the 31st day.
There are various protocols hoteliers have instituted to prevent long-term guests from becoming tenants, some more legally sound than others. For example, a letter or contract between the guest and the hotel whereby the guest agrees not to achieve tenant status is not technically illegal, but it is unenforceable, i.e. worthless because the intent is to eschew California’s tenancy laws. A court will not enforce the letter/contract in the event there a dispute arises regarding the guest’s rights and status after the 30th day.
Likewise, while a system in which reservations are cycled (where the guest checks out and re-registers every 28 or 29 days) is slightly more favored, it may still be unenforceable because the guest never actually vacates the premises and may be viewed by the court as simply another way to get around California’s tenancy laws. However, the best practice is to have the guest check out every 28 or 29 days, stay elsewhere for one night, and then check back in.
How to evict a guest who becomes a tenant
In California, if a guest becomes a tenant, the tenancy can only be terminated in accordance with the provisions of the California Civil Code, which requires (1) notice, (2) filing an unlawful detainer and (3) good cause (in some municipalities).
A written eviction notice must be posted on the tenant’s door or personally served to him/her. The amount of notice--30 days, 60 days, etc.--varies depending on the length of the tenancy (how long the guest has stayed past the 30-day mark) and the specific jurisdiction.
If the tenant does not leave voluntarily by the end of the notice period, the hotel must file a petition with the court seeking eviction in order to regain possession of the room. This requires a hearing and the process may take weeks or months.
It is important to have counsel review municipal laws because some cities and towns may have regulations that provide more robust requirements for evicting a tenant than the governing state. For example, under the San Diego Tenant's Right to Know Act, a tenancy for a period of over two years can only be terminated for good cause if:
- "Refusal to provide access: The tenant has refused to give the landlord reasonable access to the rental-unit for the purposes of making repairs or improvements, or for the purpose of inspection as permitted or required by the lease or law." (San Diego Municipal Code section 98.0730 (f).)
- "Nuisance: The tenant is committing a nuisance or permitting a nuisance in, or is causing damage to, the rental unit or to the appurtenances thereof or to the common areas of the housing complex containing the rental-unit, or is creating an unreasonable interference with the comfort, safety or enjoyment of any of the other residents in the housing complex." (San Diego Municipal Code section 98.0730 (c).)
New York state law, while very similar to California, does not provide a standard for determining whether someone is a tenant or a transient occupant. If there is evidence a long-term hotel guest has a permanent residence elsewhere, and their stay at the hotel was not intended to be permanent, the guest may be considered a transient occupant, and thereby not a tenant, even if the person has stayed beyond 30 days. A number of other states employ this “transient occupant” or “transient guest” analysis when determining whether a guest has become a tenant.
Unlike New York and California, Texas law focuses on whether a guest who claims tenancy rights can establish he or she has “exclusive possession” of the room. Texas courts have held exclusive possession does not exist when the hotel continues to exercise control over the room during the guest’s occupancy—including cleaning, providing maintenance or having access to the room via a room key.
Taking matters into your own hands
Hotel owners and operators may be tempted to exert pressure on a guest who has stayed beyond 30 days and refuses to vacate his or her room. However, it is critical to consult with an experienced attorney before engaging in any behavior that could be perceived as violating tenancy rights. For example, “self-help” that results in “constructive eviction” is prohibited, which includes a landlord’s unlawful actions to influence a tenant to vacate, such as:
- Using, or threatening to use, force, willful threats or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises “that would create an apprehension of harm in a reasonable person.” The tenant need not be actually or constructively evicted to obtain relief pursuant to this provision. [Civil Code § 1940.2(a)(3)]
- preventing a tenant from gaining reasonable access by changing the locks or using a bootlock;
- removing outside doors or windows; and
- removing a tenant’s personal property, furnishings or any other items without the tenant’s prior written consent before tenant has vacated.
At the same time, a good faith warning notice is permissible. For instance, a landlord does not violate the law by giving an oral or written warning notice, in good faith, regarding a tenant's, occupant's or guest's conduct that violates, may violate or has violated the applicable rental agreement, rules, regulations or laws. Likewise, an oral or written explanation of the rental agreement, rules, regulations, lease or laws given in the normal course of business is not a violation of the statute. [Civ Code § 1940.2(c)]
Seeking a smooth resolution
If you find yourself in a situation where you believe a hotel guest may have gained tenancy rights or is nearing the standard 30-day time limit for transient occupancy, you should seek legal counsel. The appropriate actions to minimize liability and facilitate a smooth resolution of this issue will vary depending on the circumstances and applicable state law and municipal regulations. In your quest to provide guests an unparalleled customer experience, remember that sometimes, the most prudent move is to ask them to check out.
David M. Samuels, Esq. is a senior litigation partner with Michelman & Robinson, LLP and a member of the firm’s executive committee. His practice is primarily devoted to providing legal counsel and guidance to hotels, resorts and private clubs in cases related to personal and catastrophic injury, premises liability and administrative law.
Alicia C. O’Brien is an associate in Michelman & Robinson, LLP’s (M&R’s) Los Angeles office. She is a member of the Commercial and Business Litigation Department, where she regularly represents hotel owners and operators, and other hospitality industry clients, in matters ranging from premises liability to intellectual property.
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