Evicting a Short Term Rental Guest

There may come a unpleasant time in the course of being a short term rental host, when you have to evict a guest.  This is probably the kind of situation that is hardest for hosts and which all of us hope we never have to deal with.  The guest may have engaged in absolutely unacceptable, even dangerous or criminal behavior. The guest may have vandalized the premises or had an illegal party.  They may have booked for 3 people, and brought 100 people into the property.  The guest may be a squatter, trying to overstay their reservation.

Note and disclaimer: I am not an attorney, and nothing written here should be construed as legal advice.  When engaging in any eviction, even of a short stay guest, I strongly suggest that you first consult with an attorney well versed in laws about transient occupants in your particular area of the world.  

If the guest is one you got from one of the STR platforms, such as Airbnb, I strongly suggest that you involve the platform, eg, call Airbnb for help.  They wont’ send someone over to evict your guest, of course, but they may speak to the guest and help encourage them to leave. This is the very best way to resolve this kind of situation that will put you at least risk.

In terms of evicting guests, the important distinction to be aware of, is the difference between a “tenant” and a “guest“, aka a “transient occupant“.   A tenant is someone who has a legal right to the property, which in the US generally occurs because the term of their rental period is 30 days or more. In some places in Europe, if a person is renting a room in a private home, they never have “tenants’ rights”, but in the US generally they would if they are renting for more than 30 days.  In contrast, a hotel guest or transient occupant,  is someone who is staying less than 30 days, and this type of person does not have “tenant’s rights”, including the “right” to stay in the unit beyond the check out date.

There are other criteria too which may serve to distinguish a tenant from a guest, such as:  (1) the renter receives mail at the property (this can establish tenancy), (2) the renter is the one paying for utilities directly, (3) the renter has no permanent address elsewhere (this then suggests, in terms of screening, that you do not accept guests who are in the process of moving, as they may claim to have “moved into” your unit) , (4) the renter has a “substantial amount” of personal belongings at the property (this then should lead hosts to have rules limiting how many belongings guests can bring in, eg, at most 2 or 3 suitcases…no furniture, no appliances, etc) .  By contrast, things that suggest the renter is a transient occupant, include that (1) owner has keys and right of access, eg to clean the unit, (2) owner is responsible for cleaning the unit.  (3) the renter is paying occupancy taxes for their stay, which are only charged for short term stays, not rentals of 30 days or more.

See these articles and some of those below for more information about the distinction between tenant and transient occupant:

https://journal.firsttuesday.us/transient-occupancy-and-temporary-stays-no-tenancy-involved/54666/

AND:

https://www.floridabar.org/the-florida-bar-journal/what-are-you-a-hotel-guest-tenant-or-transient-occupant/

Something that many of you will note when you do research on this topic online or look for legal information, is that the laws on this matter were written before Airbnb hosting became a big thing, so you’ll find that laws keep mentioning “hotels and motels” and you’ll wonder where you fall into that, since you are not a hotel.  This is confusing, and these laws really need to be updated to clarify that they apply not just to standard hotels/motels, but also to private homeowners who are operating “like a hotel” in the sense that they have people paying to stay for short term stays, and/or that these guests are paying occupancy taxes, which do NOT come into play for standard tenancies or long term stays.  Unfortunately, things are made much more difficult for short term rental hosts when they cannot find out information about what laws apply to them.

Generally, when the guest does not have tenant’s rights, then the host/innkeeper may do what is termed a “self-help eviction”.  This may not be true in all locales, so please check with an attorney in your area to see if it is permitted in your area.

A “self-help eviction”  means that you can evict the guest without having to go to court.  And it should be obvious that any hotel or motel would be at risk of being quickly put out of business, if they had to go through a long, drawn-out, expensive months-long process to evict every guest who paid to stay 1 or 2 days, and refused to leave.  So, a 2 day reservation does not get to magically turn into an opportunity to freeload for many months while the slow wheels of the court system grind ’round.

Rather, in regions where a “self help eviction” of a short term stay guest is permitted (and ONLY where this is permitted) the host or innkeeper may remove the guest themselves, generally by locking them out of the space and packing up and removing their belongings.  These belongings must be held for them so they can come pick them up, but in some regions, the belongings may be sold to pay for any debt owed by the guest. Note that you cannot just pack their things up and set them outside on the porch or at the curb, you have to take care with their property and keep it in a secure place for them.

This article lists some of the reasons short stay guests are evicted and how the eviction is done.  Note that this is oriented to hoteliers or innkeepers, but keep in mind, as is often the case when reading laws about short term stay guests, these laws were written before Airbnb hosting rose, and hosts are very similar if not identical to innkeepers in ways that some believe make these laws applicable:

https://hotels.uslegal.com/removal-of-guests/

It’s generally best to involve the police and have the police remove the overstaying guest, however, bear in mind that because Airbnb hosting is relatively new, and the laws on the matter mention “hotels” but not private homes where short term rentals are done, as well as because in many areas tenants’ rights are powerful and police can be sued for evicting a legal tenant, you might  find that when you call the police, the police will refuse to help.  This is likely in the areas of the nation with the strongest tenant rights, such as coastal California.

police cartoon

Sorry but I wont’ do my job because I’m scared I might be sued.

 

In addition to locking out a short stay guest, because that person has no “tenant’s rights” or rights of possession to the property, the host can in some places where self-help evictions are permitted, use many other methods to remove the person, that would not be allowed to be used if the renter were a standard tenant, such as:  shutting off all utilities, removing the front door from the unit, removing all the furniture from the unit including the bed and all bedding, entering the unit while the guest is in there and starting to clean it and start to pack up guests’ belongings if they don’t pack up themselves, or, last but not least, my favorite, creative fun such as invite all your friends over to the unit, start having a  party in the unit and a slumber party sleepover.  This latter may be more of a fantasy suggestion than actually practical, but short term rental hosts often need a laugh.

However, again, please keep in mind, that such actions are ONLY legal where the host has the legal right to enter the premises and do to a self-help eviction, and not in cases/regions where these things are not allowed or are not the case.

Remember, in general, though not always, for transient, short-term rental occupants, in a “hotel-like” or innkeeper types situation,  the property belongs to you, the guest has no right to remain after checkout, and as indicated below by laws in some states, if they stay even 10 minutes past checkout they are trespassing and can be arrested by the police.  slumber party (2)

Keep in mind though if you decide to confront and evict the guest, or occupy their unit or pull all furniture out — please bear in mind the kinds of people you are dealing with and what they are capable of, and be prepared for this.  Particularly if you have a professional scammer/squatter, what you don’t want to do, is go in as an unprepared welterweight into a heavyweight boxing match.  You could be assaulted.  Don’t ever get into a physical altercation with anyone!   You could end up being arrested by the police if the guests are smart enough to tell the lies or “spin” the situation or produce the fake or doctored documents that would result in this.  So be very cautious about direct confrontations.

For instance, someone who is a short term guest who rented from you for 2 days, might refuse to leave and when you call police to have them removed, produce fake documents saying they’ve rented the unit for 6 months.  What will you do then?  The problem in many locales, is that this might then become a “civil matter” which means, you could have to file an eviction lawsuit and go through a whole long court process  to get the person out.  So it may behoove you to have documents showing the person is a short term guest.

Just like it’s important to have a good sense of people’s character when you screen guests to decide whether to accept them, it’s also important to be a good judge of character to manage a guests’ stay, and particularly when considering evicting a guest.  Those who are pro scammers in particular are likely to be tough-skinned, nasty, people capable of pouring a torrent of abuse and threats on anyone who confronts them.

As well, if you enter the property when the short stay guests are there, you should never break into the property, because this would allow them to potentially call police and allege that a crime such as a home invasion robbery or burglary is taking place.  Keep in mind as well, a short stay guest may misrepresent themselves and/or their rental, and claim they are a long term tenant, in order to try to curry favor from the police and exploit tenant’s rights (which do not apply to short stay guests) to their advantage.
And on that note, the general theme here, which I’ve continued to underscore in many of my articles, is that, unlike what Airbnb would like people to think when it tries to portray hosting as a simple and easy way to make money, the rental property business is not a business for amateurs.  If you don’t know what you are doing, don’t do it.  If you don’t know the law or have not consulted with an attorney, do not take rash action.

We see a lot of stories on the host groups of people getting a false sense of pride when they have nothing but a string of great guests, imagining that they now know everything there is to know about hosting.  But then the really bad guest comes and they have no idea what to do, and flail around wildly, and this could result in their hosting business suddenly sinking like a ton of bricks.

Here are some resources I found online when searching for information on legal issues about evicting guests in different parts of the USA:

Evicting a guest in different states of the US:

https://www.cga.ct.gov/2000/rpt/2000-R-0859.htm

http://globalhosting.freeforums.net/thread/3641/evicting-guest-states-usa

https://travel.uslegal.com/hotel-liability/right-to-evict-persons-admitted-as-guests/

http://www.hotelnewsnow.com/Articles/23189/How-to-effectively-legally-remove-a-guest

Evicting a guest in California:

http://globalhosting.freeforums.net/thread/3633/evicting-guest-california

https://www.linkedin.com/pulse/20140725043916-11700131-airbnb-occupants-who-refused-to-leave-a-better-way-is-self-help-against-lodgers

As stated in that latter article:

Indeed, except as otherwise provided by statute, an owner who rents to a lodger need not resort to unlawful detainer procedures to evict a lodger. A lodger who breaches his or her contract with the proprietor is a trespasser and may be ousted without prior notice. [Roberts v. Casey (1939) 36 CA2d Supp. 767, 775, 93 P2d 654, 659]

Unlike landlords, owners may obtain possession by “self-help” (e.g., locking the premises) if able to do so without physical force. This is important — an owner can lock out a lodger at check out time as long as they do not use force to do so.

Not using force, means, I believe, not using physical force.  You cannot assault a guest and shove them out or physically pick them up and remove them.  You cannot threaten them with physical harm if they don’t leave.

This is an article by the California Lodging Association which is quite helpful:

ABCs Of Evicting Guests

California law:

http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1865.&lawCode=CIV

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1940

https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=RTC&division=2.&title=&part=1.7.&chapter=1.&article=

https://www.losangelescriminallawyer.pro/amp/california-penal-code-section-537-a-pc-defrauding-an-innkeeper.html

In California, and several other states. a transient occupant/guest who refuses to leave at the end of their stay, is guilty of the crime of trespassing and can be arrested by police, see here:

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=602.

Read section s in that law, as follows, which defines a guest as a trespasser if they are:

(s) Refusing or failing to leave a hotel or motel, where he or she has obtained accommodations and has refused to pay for those accommodations, upon request of the proprietor or manager, and the occupancy is exempt, pursuant to subdivision (b) of Section 1940 of the Civil Code, from Chapter 2 (commencing with Section 1940) of Title 5 of Part 4 of Division 3 of the Civil Code. For purposes of this subdivision, occupancy at a hotel or motel for a continuous period of 30 days or less shall, in the absence of a written agreement to the contrary, or other written evidence of a periodic tenancy of indefinite duration, be exempt from Chapter 2 (commencing with Section 1940) of Title 5 of Part 4 of Division 3 of the Civil Code.

No trespassing tired of hiding bodiesAlso, make use of information shared on the Airbnb Community Center on the topic of Evicting a guest.  When I searched under that phrase, I found these posts among others:

https://community.withairbnb.com/t5/Hosting/Airbnb-evictions/m-p/689858

https://community.withairbnb.com/t5/Help/Evicting-an-overstaying-guest/m-p/962924

https://community.withairbnb.com/t5/Help/How-to-remove-a-problematic-guest-before-end-of-reservation/m-p/958774

https://community.withairbnb.com/t5/Help/When-guests-stay-after-their-Check-out-and-do-not-want-to-leave/m-p/689487

https://community.withairbnb.com/t5/Hosting/Does-Airbnb-help-with-tenants-who-won-t-leave/m-p/25325

All in all, an overstaying guest is a rare thing in the hosting world.  It is probably more common for hosts to have to evict guests for egregious behavior, such as having a loud illegal party with dozens of unpermitted visitors, or using illegal drugs.  Take great care though that if you need to evict someone whose reservation is still in place and has not ended, that you do so carefully, generally with help from Airbnb, so that the guest doesn’t complain to Airbnb alleging improper behavior by you.  For instance, one host, actually a Superhost, had her account deactivated by Airbnb after she kicked some “methhead” guests out of her listing.

https://community.withairbnb.com/t5/Hosting/Airbnb-perm-deactivated-my-sprhost-account-after-kicking-out/m-p/887447#M218682

This host said:

When I went to take photos, I saw hundreds of syringes, butane bottles and spoons, and being a woman that lives alone, it scared the hellout of me, I was scared for my safety, and did not feel safe at all, so I gathered their things which wasn’t a lot, and put it outside, cancelled the reservation and left them a message telling them that I didn’t feel comfortable hosting them anymore.  I only went into the bedroom because the airbnb host that I was talking to told me to take photos.  These guests were obviously abusing the Open Homes program, and they were freebasing pronbably meth in my home.  Once Airbnb permantly deactivates your account, you no longer can sign in or get support.  Its ridiculous.  I can’t beleive that I did something kind out of the bottom of my heart, and was treated this way by Airbnb.

It’s horrendous that any host would be deactivated for taking what seems like a reasonable approach to protecting her own home and safety, and for Airbnb to be more concerned about the “rights” of guests who are doing illegal drugs in a hosts’ home, than for that host, is a troubling situation. But this case underscores the importance of making plans about potential problem situations before they actually occur, so that, in the midst of a “crisis” situation you experience, you don’t end up doing something that can get you in trouble.

As a smart host, you do not ever want to be reflexively taking rash action in a panic mode.  As I’ve said dozens of times in various articles and on host community groups, it’s best not to get into this business at all if you have not thought things through and/or done the research to know what you are doing.  And knowing what you are doing means, among other things, planning what you’ll do if you end up with a bad situation like a guest you need to evict.  Plan for this now, when it’s not happening to you, so that if it ever does happen, your plan will snap into place, and you wont’ have to spend days or weeks doing research and making emergency phone calls when in the midst of a crisis.

Though Airbnb generally doesn’t provide any reason when they terminate a host (it should be illegal to not provide a reason, and in Europe with its GDPR rules, it likely is illegal), I suspect that what got this host in trouble was putting the guest’s belongings outside the house, in an insecure location.  When evicting someone, as you’ll note when reading any of the info about hotels evicting guests, you can confiscate their things but you must store their belongings securely for them to pick up later.  You can’t just throw their belongings away or put them outside where they could be stolen.

Further:  regarding getting the police to help you.  

Some people may not realize it, but police are not obligated to help us at all.  They have NO legal obligation to protect citizens.  Of course, police usually do respond when called, but though this may seem unjust or strange to you, they are not legally obligated to do so.  For more information about this see here:

https://en.wikipedia.org/wiki/Warren_v._District_of_Columbia

And

https://www.nytimes.com/2005/06/28/politics/justices-rule-police-do-not-have-a-constitutional-duty-to-protect.html

Many people dont’ realize this and tend to think of police as Big Daddy who will always be there to protect us.  But it’s precisely because police are not legally obligated to protect us, that many people have guns, because if the police take too long to arrive or dont’ come at all, it’s really up to you to protect yourself.

No Self Help Eviction allowed with Standard Tenants!! 

Finally, it must be underscored, that if you are dealing with a long term rental, and a standard tenant, you absolutely cannot do any form of “self-help eviction” as these are quite illegal in such instances.!!   In fact if you do try to do a “self-help eviction” on a renter with tenant’s rights because they have contracted for a long term stay, you could end up in a world of trouble, as indicated in this story about a California Airbnb host who was arrested by police and charged with several crimes after trying to break into a listing where there were people she’d apparently entered into a long term contract with.

http://www.ktvu.com/news/ktvu-local-news/mountain-view-landlord-tries-to-scare-tenants-away-with-staged-home-invasion

and

https://www.mountainview.gov/news/displaynews.asp?NewsID=1490&TargetID=9

Note that it doesn’t matter if there is a written contract for the long term rental — any intent to rent to someone for long term, and any agreement, even if only verbal, is sufficient to give them tenant’s rights, even if they have only stayed one stay and never paid you a dime.  It’s important, for that reason, to screen renters very carefully, and if you do take long term stays — which I generally do not recommend that short term rental hosts do — you never let someone set foot on the premises before they have paid the entire amount required to move in and gain possession.

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