We Took Them in After the Fire, and Now They Won't Leave

An older couple sit on the sofa and have a serious discussion. — (Image credit: Getty Images)

It is human nature to help someone in distress, or at least want to help. That’s how most of us felt night after night while watching the evening news earlier this year when wildfires tore through Southern California, Texas and Oklahoma, making thousands of people suddenly homeless.

While neighbors took in many, sometimes good deeds led to unanticipated, frustrating consequences.

“Alfred” and “Eileen,” both 85, shared this with my office via email:

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“Mr. Beaver, we live about two blocks from where the Pacific Palisades fire was brought under control. That same day, a couple with their two young children were going house to house on our block, asking to be taken in, as their home was destroyed. We felt it our religious duty to help and invited them to stay with us temporarily.

“Everything was on a handshake basis. ‘Anytime you want us to move, we will,’ we were assured.

“They were delightful and pitched in to become a part of our family life, buying groceries, helping to pay for the water and electricity bills and insisting on paying us something for the privilege of staying here. But something was strange. Neither of the adults had a job. They explained that they received Social Security disability and unemployment insurance.

“It has been months, and we politely said that it is time for them to find another place to live because our adult children are moving back home, having lost their government jobs. But they refused, claiming that they are no longer just houseguests but tenants! Is this true? What should we do?”

How guests become tenants

I ran their situation by two attorneys who handle landlord/tenant matters — Hanford, Calif.-based Bob Zumwalt, and Ken Carlson of Idyllwild, Calif. Zumwalt immediately quoted Benjamin Franklin’s proverb: “Guests, like fish, begin to smell after three days.”

Both lawyers “have seen the same thing happen” and agree that, sadly, this generous couple may have no choice but to retain an attorney and evict their “guests.”

I asked them how to prevent generosity from creating a landlord/tenant relationship that was never intended.

Carlson: By accepting something for the privilege of staying there, the relationship legally changed from guests to tenants. If they had just purchased food and done nothing to pay for living there, they would have remained as guests.

When a homeowner agrees to accept anything in exchange for the guest staying there, even cleaning the house, babysitting or doing handiwork, it can become a tenancy.

A guest can be removed by police as a trespasser, but a tenant has to be evicted by legal action.

Zumwalt: When you bring someone into your home as a guest and they will likely be staying for a substantial time, do a tenant background check to see if they have been evicted or sued and, if so, for what.

Additionally, have all adults sign a Host and Guest agreement, stating, “Guest occupies the premises as a licensee, and no relationship of landlord and tenant is created.” The agreement should expressly provide that no payment of any kind will change hands, including any non-cash forms of compensation such as labor or repair work.

Guests have been known to claim the owner agreed to rent to them in exchange for handyman work around the house. A written agreement that expressly denies the existence of any such arrangement can prevent them from being deemed “paying tenants” because they once swept the walkway or oiled a squeaky door hinge.

Carlson: Before letting them move in, the homeowner needs to ask the guests important questions:

How long do you want to stay?
What are your plans afterward?
What is your income?
What clothes or other things do you plan to bring along, as opposed to storing elsewhere?
Are you planning to pay for anything?

Getting something in return for living there is the main thing. Having a key, moving in furniture and other personal property or getting mail at the address don’t transform a guest into a tenant.

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If they can pay — and could be there for a long time — it’s better to have a written rental agreement, with a deposit, and a background check is a good idea.

In California, the agreement can provide for eviction with only seven days’ notice, and if it is a single person, a 30-day notice takes the place of a formal eviction.

Given the time and expense of trying to evict a tenant, many landlords have simply paid their tenants to leave. Both Carlson and Zumwalt agree that that may be the most cost-effective way my older readers can deal with their “guests.”

Interested in becoming a landlord?

Being a landlord means that you are in business and need to understand the laws and regulations that govern your investment. A good place to begin is with Every Landlord’s Legal Guide from Nolo Press.

However, if you are older, retired and plan on living a long time, you might want to consult with a psychiatrist before becoming a landlord. The hassle and grief might not be worth it.

Dennis Beaver practices law in Bakersfield, Calif., and welcomes comments and questions from readers, which may be faxed to (661) 323-7993, or e-mailed to Lagombeaver1@gmail.com. And be sure to visit dennisbeaver.com.

Disclaimer

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.

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After attending Loyola University School of Law, H. Dennis Beaver joined California's Kern County District Attorney's Office, where he established a Consumer Fraud section. He is in the general practice of law and writes a syndicated newspaper column, You and the Law. Through his column, he offers readers in need of down-to-earth advice his help free of charge. "I know it sounds corny, but I just love to be able to use my education and experience to help, simply to help. When a reader contacts me, it is a gift."