What’s the Difference Between a Tenant and an Occupant?

A romantic partner who frequently spends the night. A college buddy who needs someplace to crash. A colleague who doesn’t want to spend their quarantine alone. Though the circumstances can vary wildly, there’s no shortage of reasons why someone might find themselves staying at your place. Whether it’s a temporary situation or a recurring arrangement, there’s a whole mess of details to navigate when you find yourself cohabitating with someone… and that’s before we start talking about the legality of the situation. The coronavirus lockdown has certainly exacerbated this issue, but it’s worth knowing everyone’s rights regardless of the circumstance; resident and landlord alike.

So if you find yourself wondering just what is the difference between a tenant and an occupant — especially in a practical sense — then read on.

The Legal Distinction Between Tenants and Occupants

While you might think that the terms are interchangeable, they have distinct meanings in a legal sense.

An Occupant is someone who’s

• residing on the property, either temporarily or permanently.

A Tenant is an occupant who’s

• signed a contract, binding them to the obligations of the lease agreement.

When you’re looking through your lease document, it’s important to note the language used. In a perfect world, every lease agreement — and piece of legislation — would adhere to this technical and legal distinction… but we all know that’s not the world we live in. So keep in mind when looking through agreements, and even legislation in some cases: the terms can be treated as synonyms, even when they’re not.

When in doubt, ask questions. On that note…

What are Some Examples of Occupants?

The most common form of occupants are children: as minors, they couldn’t sign the lease even if they wanted to, but nobody’s confused about the fact that they live there. They might be listed as occupants on the lease, but there’s no legal recourse for treating them like a tenant. Adult children living in the same property as their parents, however, should likely be on the lease.

What Happens if a Minor Occupant Turns 18 During the Lease?

Typically? Nothing. Maybe a birthday party, but given the nature of a 12-month leasing cycle — and the possibility that the occupant won’t be sticking around — means that in almost every scenario, there’s no need to rewrite the lease to account for the new adult. In cases where liability is a genuine concern, a co-tenant addendum can be added to the lease with all involved party’s consent.

When Does a Guest Become a Tenant?

Of course, it’s not just children coming of age that we’re concerned about here.

If you’re looking for a hard and fast rule, I’m afraid you’re going to be disappointed. Anything that isn’t already in the lease is going to be nebulous by definition, but even if the lease contains explicit language — for example, individuals who are not on the lease can spend a maximum of 14 consecutive days in a six month period — proving and enforcing that can be difficult.

And if there aren’t any such clauses in the lease? Then we start to enter some thorny territory. The line between crashing, spending the night, and gradually moving in is anything but clear. Signing a lease with someone is always a big deal — whether they’re a romantic partner, friend, family member, or someone you met in a roommate finding service, shared legal liability is a big step. And certainly not one to be rushed.

So if the rules are vague, and the situation isn’t cut and dry, how can you be sure that you’re not violating an agreement, or exposing yourself to unnecessary risk?

One word: communication.

Landlord-Tenant Communication is Key

So you’ve read through the Massachusetts guide to tenant rights and responsibilities, the Every Landlord’s and Every Tenant’s Legal Guides (library card required), and if you’re particularly obsessive, you’ve even gone over some case law… but you’re still not certain where you stand? That’s okay! Even lawyers might conclude that there isn’t a clear answer for your situation (and just to be clear, this blog should not be considered legal counsel: if you think you need a lawyer, hire a lawyer), so it’s nothing to get worked up over.

Because thankfully, the recommended response is the same whether you suspect there’s a lease violation, or you’re confident that the situation is too vague to define either way:

Clear and honest communication.

Here’s the thing. Everything in a lease is technically negotiable. Circumstances change, and a static document can’t always adapt to evolving circumstances. People fall in love, relatives need assistance, and unforeseen circumstances — like the COVID-19 quarantine — can throw everyone’s plans into chaos. But chances are that there’s no need to make changes to the lease, so long as everyone is aware of the circumstances. Landlords want to know who’s occupying their property. Tenants want to know what their rights are.

So talk it out.

If you’re a tenant in a blossoming relationship, bring up the frequency of your overnight guests. 99 times out of 100, the landlord isn’t going to make a big fuss: they just want to know everyone who’s living on the property. Conversely, if your tenant seems to have a guest more nights than not, ask them about the situation, and if they’re looking to move someone in. Extenuating circumstances should absolutely be considered by both parties — like say, a constantly-extending shelter-in-place order — but nobody wants to be surprised by this kind of situation.

Here’s the thing: a lease protects both sides of the contract. It ensures the rights of both the tenant and landlord. Occupants aren’t bound by that, meaning that neither the tenant, the landlord, or the occupant in question enjoys legal protections in the situation… which can be difficult for all involved if things turn sour.

The one thing that you absolutely, positively, must not do is wait until things become problematic. Do everyone involved a favor, and be proactive.

Occupied with Occupation

For such a simple distinction — on the lease or not — there’s a lot of room for misunderstanding. If you’re not sure if you’re in the clear, it pays to read up on your rights and responsibilities. Resources like the Massachusetts Attorney General’s Guide to Landlord and Tenant Rights, mass.gov’s Landlord-Tenant Regulations, Landlordology.com’s guide to Massachusetts’ Landlord-Tenant Laws, and other trusted sources are key here.

But ultimately, the only people who can really determine what to do in a given occupant situation are the landlord and the tenant(s) in question. So it bears repeating: if you aren’t sure if someone is allowed to stay with you, or you aren’t certain of everyone residing on your property, strike up a conversation, and work it out together.

And hey! If all this has convinced you that what you really need is your own apartment, we’ve got you covered.