Blog Post

If you're a landlord, you hope you'll never have to evict a tenant. But if you do, you might want to know the difference between a "lodger" and a "tenant" and why it's important to make the distinction and how the court goes about making the determination.



Reason No. 1 Notice Requirements

Most people know that if you're a hotel guest, you're not a tenant. If you overstay and refuse to leave, the hotel proprietor is not required to go to court and file unlawful detainer. Instead, they just call the cop on you. As simple as that. No court order is required. On the other hand, if you have a signed lease and have the apartment exclusively to yourself, in most cases there's little doubt that you're a tenant. Your landlord can't legally evict you without a court order. An eviction of a tenant without a court order may expose you to civil liability.

Also, under California law, absent an emergency, a tenant is entitled to receive statutory notices before a landlord may enter the rental unit. A lodger may not have such right.

Reason No. 2 Rent Control Laws

In many rent control areas like San Francisco, Oakland, and Los Angeles, a landlord can't evict a tenant without "just cause". Different jurisdictions define "just cause" slightly differently but some of the typical "just causes" are nonpayment of rent, violation of the lease terms, or nuisance.

if your landlord wants to take the rental unit back for his or his relative's use even if you've done nothing wrong to warrant an eviction, i.e. he's evicting you "without cause". If you're a tenant, many rent control ordinances require landlords to pay you relocation expenses which can be quite significant depending how long you're lived in the rental unit in some cases. But if you're just a "lodger", not a "tenant", you're entitled to no relocation expenses.

In San Francisco, a lodger is entitled to rent control protections if he or she has stayed at the rental unit for 32 or more days however may not be entitled to receive rent control protection in"just cause" evictions or relocation expenses where he or she lives in the same rental unit as his or her "landlord" - or should I say the proprietor. But almost everything else in the San Francisco rent control ordinance such as rent increase restrictions and payment of interests on security deposit apply to him or her.

Reason No. 3 Defenses In Unlawful Detainer

A lodger may be evicted in an unlawful detainer proceeding despite the lack of landlord-tenant relationship. However, since a lodger may be evicted for no reasons at all, it's doubtful if the defense of retaliatory eviction applies to him or her. The bottom line is it is much easier to evict a lodger than it is a tenant.

How The Court Decides If A Person Is A Lodger Or A Tenant

The court looks to the intent of the parties when they enter into the agreement. Often the rental agreements between a lodger and a proprietor are oral but whether they are written or not is not controlling. Evidence can be presented to prove the parties' intent. So if you're renting a room to someone as a boarder, it behooves you to have something in writing that clearly spells out the terms which tend to indicate he or she is a boarder.

However, the court looks at a number of factors aside from the agreement though the agreement carries a lot of weight. But if the actions of the parties after the signing of the agreement tend to show a landlord-tenant and not a lodger-proprietor relationship, it may still find the renter to be a tenant despite the agreement.

Certainly having a clear written agreement at the outset would tend to favor the finding that no landlord-tenant relationship exists.

The determination is a mixed question of law and facts.

Right of possession and Control. When you own a house and rent a room to a person as a boarder and if you still maintain possession and control of the room you're renting, he or she tends not to be a tenant. It can be a question of law if the facts are undisputed especially when the words "right of possession" is used in the lease to indicate it has been delivered to the renter which tells us the renter is intended to be a tenant.

The court also looks at a myriad of factors. Not a single factor controls the outcome of the determination.

Services And Payments. In a typical proprietor-lodger situation, the renter pays an all-inclusive price to stay in a room and the "landlord" pays the utility bills and provides phone and mail, and cleaning services including linen change and window cleaning and garbage service, the room generally comes furnished such as in the case of a hotel. The other end of the spectrum is an apartment tenant who has separate meters for utilities, brings his or her own furniture, and stays in a complex where there are multiple and separate units.

Sometimes it may be difficult to decide where the factors are countervailing. The court has to weigh all factors to come to a conclusion.

The bottom line is whatever relationship you intend it to be, just make sure you make it clear at the outset and avoid any confusion n the future. You'll never know when the issue is going to come up. You can save yourself a lot of headache - and money.