This rule is discussed in Young v. Harrison, 284 F.3d 863 (8^th Cir. 2002). “Many jurisdictions draw a distinction between a tenant and a hotel guest by reasoning that the tenant acquires an interest in the real estate and has the exclusive possession of the leased premises, whereas the guest acquires no estate and has mere use without the actual or exclusive possession. The great weight of authority leads us to conclude that the better view is that hotel guests are not tenants, and therefore hotel guests do not have all of the rights afforded tenants….” [2]

Courts have considered several factors in distinguishing a licensee from a tenant including retention of a key to occupant’s room[3], maid service [4], sharing of facilities [5], and that furniture and furnishings were provided by the owner[6].

Even if some of the various characteristics usually indicative of a licensee status are present, if the parties intended to transfer exclusive possession a tenancy may be found.[7]

The degree of permanency of the occupancy is traditionally a key consideration.[8]

The Uniform Residential Landlord and Tenant Act includes roomers and boarders, but excludes transient occupancy in a hotel, or motel or lodging.[9]

This is a short summary and not a substitute for legal advice. Laws vary by jurisdiction and are subject to change. For legal advice about your circumstances consult an attorney.

[2] Id., citations omitted.

[3] Stowe v. Fritzie Hotels, Inc., 44 Cal.2d 416, 282 P.2d 890 (1955).

[4] Roberts v. Casey, 36 Cal.App.2d Supp. 767, 93 P.2d 654 (1939).

[5] Taylor v. Dean, 78 A.2d 382 (1951).

[6] Stowe v. Fritzie Hotels, Inc., 44 Cal.2d 416, 282 P.2d 890 (1955); Lambert v. Sine, 123 Utah 145, 256 P.2d 241 (1953).

[7] Id.

[8] See Schonshinsi, supra, citing Tenant, Lodger, and Guest: Questionable Categories for Modern Rental Occupants, 64 Yale L.J. 391 (1955). But see Wilson v. Martin, 1845 WL 441 (N.Y. Sup. Ct. 1845)(“When one contracts with the keeper of a hotel or boarding-house for rooms and board, whether for a week or a year, the technical relation of landlord and tenant is not created between the parties. The lodger acquires no interest in the real estate.”).

[9] Uniform Residential Landlord and Tenant Act, § 1.202and Comment at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1970s/urlta72.htm (last accessed 04/18/09).

An employee residing in employer providing living accommodations can be a tenant. If there is a lease with a term that differs from the duration of the employment this may indicate an intent to create a landlord-tenant relationship separate and distinct from the employment relationship.[2] A landlord-tenant relationship may also be found where there was such a relationship prior to employment[3] or where rent is paid or is deducted from employment payments.[4]

The Uniform Residential Landlord and Tenant has been adopted, with significant amendment, in twenty-one states.[5] The Act excludes from its provisions “occupancy by an employee of a landlord whose right to occupancy is conditional upon employment in and about the premises”. The Comments state that the Act “is not intended to apply where residence is incidental to another primary purpose such as…residence by a landlord’s employee such as a custodian, janitor, guard or caretaker rendering service in or about the demised premises.”[6] Presumably where the court would otherwise hold the parties intended to create a landlord-tenant relationship, a landlord-tenant relationship exists albeit one to which the Act does not apply.

However, some courts have held that where employee possession of premises is incident to the employer’s service or required for job performance, such as a janitor or caretaker, the possession may be for the employer’s benefit and no landlord-tenant relationship exists.[7]

Avoiding the finding that a landlord-tenant relationship exists may not be advantageous to the owner in some jurisdictions, as it deprives the owner of the right to pursue summary dispossession actions.[8]

This is not a substitute for legal advice. For advice about your circumstances consult with a landlord-tenant attorney.

Further Reading

Robert S. Schonshinski, American Law of Landlord and Tenant, §1:6 (1980) and Cumulative Supplement (2008).

Friedman, Milton Friedman on Leases §2:1.7 at 2-12 (Fifth Ed. 2008).

[2] Walton v. Darby Town Houses, Inc., (E.D. Pa. 1975);

[3] Dobson Factors, Inc., Dattory, 80 misc.2d 1054, 364 NYS2d 723 (1975); Bigelow v. Bullard, 111 Nev. 1178, 901 P.2d 630 (1995); Kearny Court Associates v. Spence, 262 N.J. Super. 241, 620 A.2d 1056 (App. Div. 1993).

[4] Tremont Lumber Co. v. Lacas, 62 So.2d 665 (1953); Tatro v. Lehouiller, 147 Vt. 151, 513 A.2d 610 (1986).

[5] See National Conference of Commissioners on Uniform State Laws Legislative Fact Sheet at http://www.nccusl.org/Update/uniformact_factsheets/uniformacts-fs-urlta.asp (last accessed 04-16-09).

[6] See Uniform Residential Landlord and Tenant Act, § 1.202 and Comments, available at the National Conference of Commissioners on Uniform State Laws webite at http://www.law.upenn.edu/bll/archives/ulc/fnact99/1970s/urlta72.htm (last accessed 04-16-09).

[7] See, for example, Moreno v. Stahmann Farms, Inc., 693 F.2d 106 (10^th Cir. 1982); .

[8] See Turner v. White, 20 Wn. App. 290, 579 P.2d 410 (1978).<-->