Bad law forces homeowners to assert their rights in court. Property
Rights have been replaced by a fuzzy list of rules based on the “status” of the
squatter as a Tennant or a Guest. A Transient Guest is defined according to
their length of stay and their access to the home; this is decided by the
court. Removal of a Guest requires initiating an “Eviction Process”.
Homeowners who hold title to the home are left with limited
rights to protect their property and determine who is allowed to live in their
home plus legal process fees and a 30 day waiting period.
Homeowners should have the right to banish their guests
without having to initiate eviction or call the police and subject themselves
to court and legal expenses.
Rights
of a Long Term Guest at a Residence, by Emilee Mooney Scott, Legislative
Fellow, 2/17/10.
You
asked about the rights of a person staying at the home of another person on a
long-term, but informal, basis.
Specifically,
you asked (1) when and how such a guest may gain legal protections equivalent
to those afforded to official tenants and (2) how the primary resident may have
a person who began staying with them as a guest, but refuses to leave, removed.
This
office is not authorized to give legal opinions and this report should not be
construed as such.
SUMMARY - The
state's landlord-tenant laws protect people living in dwellings owned or leased
by others. A person need not be listed on a formal lease to gain protection
under these laws, but may gain protection by establishing residence in a place.
Transient guests, however, are not protected and the dwelling's primary
occupant may cause them to be removed. Transient status is determined on a
case-by-case basis, focusing on whether the person has control over and
possession of the space in question. The court considers such factors as how
long the person has lived in the dwelling, whether he or she receives mail
there, and the degree of control that he or she has over the space.
When
a homeowner or apartment tenant wishes to remove a person staying with them,
and that person can no longer be considered a transient guest, the typical
eviction procedures must be followed. Thus, law enforcement personnel may only
remove transient guests from a dwelling. Law enforcement personnel with whom we
spoke confirmed that before removing an individual from a home, whether rented
or owner-occupied, they would determine that the person was a guest. To make
this determination they would use factors such as length of stay and whether
the person receives mail, and not rely upon whether or not the person was listed
on a lease.
TRANSIENT STATUS - Connecticut has a system of landlord-tenant laws that
protect tenants and other occupants of dwelling units. Certain living
arrangements are exempted from the landlord-tenant laws, including “transient
occupancy in a hotel or motel or similar lodging” (CGS § 47a-2(a)(4)). The
statute defines transient occupancy as follows:
(1)
Occupancy in a hotel, motel or similar lodging for less than thirty days is
transient, except that such occupancy is not transient if the dwelling unit or
room in such hotel, motel or lodging is occupied as the primary residence of
the occupant from the beginning of such occupancy; and
(2)
Occupancy in a hotel, motel or similar lodging for thirty days or more is not
transient, except that such occupancy is transient if the dwelling unit or room
in such hotel, motel or lodging is not occupied as the primary residence of the
occupant and the occupancy is for less than ninety days (CGS § 47a-2(c)).
Courts
have considered several factors in determining whether a person is a transient
guest. Such factors include:
1.
length of stay;
2.
existence of a lease or other “special contract for the room;”
3.
receipt of mail;
4.
access to cooking facilities;
5.
degree of control over the space (such as whether the person has his or her own
key);
6.
whether the person has another residence; and
7.
the extent to which the person has made the dwelling his or her home for the
time being (Bourque v. Morris, 190 Conn. 364, 369 (1983), State
v. Anonymous, 34 Conn. Sup. 603, 605 (1977)).
These
factors allow the court to determine whether the person has possession and
control over the space in the manner that an official tenant would. A
unilateral intention on the part of the occupant to remain indefinitely is not
enough; all of the circumstances of the transaction must be considered (Bourque,
190 Conn. at 369).
For
example, in Bourque v. Morris, the court held that a person was a
transient guest at a hotel even though he had stayed there for more than three
months and had no other home. While those factors were significant, the court
also noted that “the operation of the premises as a licensed hotel, the
rudimentary nature of the accommodations furnished, without cooking, bathing or
toilet facilities in the room, [were] some indication that only a temporary
living arrangement was intended.” But in State v. Anonymous, the
court held that the state had not proven beyond a reasonable doubt that a
person was a transient guest when he had rented an efficiency apartment for
four weeks on a week to week basis.
Private Dwellings
While
the transient status statute mentions only hotels and motels, the courts use
the same analysis to determine whether a person is a guest in a private home.
For example, a person who lived in his fiancée's home for several years and
contributed to household expenses was held not to be a tenant because he paid
no fixed amount as rent, had no fixed period of occupancy, and was in a
romantic relationship with the homeowner which she could have terminated at any
time (Allstate Ins. Co. v. Palumbo, 109 Conn. App. 731, 740 (2008)).
The
relationship between the occupant and the primary resident of the dwelling may
be a significant factor in determining whether the occupant should be treated
as a tenant or a guest. As noted above, in Allstate Insurance Co. v.
Palumbo the homeowner's fiancé was held to be a guest rather than a
tenant because “the landowner could terminate his stay at any time by
terminating their relationship.”
The
New Haven Housing Court took a similar approach in determining whether a man
could be prevented from returning to live at his mother's home after his
release from prison (Victor Popolizio v. Arnold Popolizio, CVNH
97109-8475 (11/3/97)). The court found that the son could be prevented from living
at the home because he had not exercised the requisite control over the
premises, and did not have a formal rental agreement. The court stated that its
finding was: informed by logic, common sense, practical considerations of
everyday life, and societal customs, standards and practices with respect to
occupancy arrangements between a parent who owns or leases a dwelling unit and
an adult child residing in the dwelling unit without a rental agreement…
The
court held that the plaintiff had resided with his mother at her pleasure, so
she could have him removed at will.
EVICTION PROCESS -
The
process for removing an occupant is the same regardless of whether the rental
unit is a room within a single-family residence or an apartment in a multi-unit
building (see OLR Report 07-R-0381). This is
true even if the primary resident is a renter. Subtenants are protected under
the landlord-tenant laws, and tenants have standing to evict subtenants (CGS
§47a-1; W. Boot & Clothing Co. v. L'Enfance Magique, 81 Conn.
App. 486, 490 (2004)).
Eviction
is accomplished through summary process, which proceeds as follows:
1. Notice to Quit. The landlord must
serve the notice to quit before a rental agreement is terminated (CGS §
47a-23).
2. Summons and Complaints. If
the tenant does not quit possession by the date specified in the notice, any
commissioner of the Superior Court may issue a summons and complaint to be
served on the tenant (CGS § 47a-23a).
3. Appearance. A tenant must respond
to the summons and complaint by filing an appearance with the court. If the
tenant does not file an appearance, the landlord may file (a) a motion for
judgment for failure to appear and (b) an endorsed copy of the notice to quit
with the court clerk. The court must then enter a judgment against the tenant
and issue an order to vacate (CGS § 47a-26).
4. Answer to Complaint. In addition to filing an appearance, the tenant
should file a summary process answer. If he or she does not, a landlord
can file a motion for judgment based on failure to plead. And if the
tenant fails to plead within three days after receipt of the motion by the
clerk, the court must enter judgment against the tenant (CGS § 47a-26a).
5. Trial. A trial is scheduled after
pleadings are closed (after the complaint has been answered and any special
defenses have been raised and countered) (CGS § 47a-26d).
6. Judgment and Execution. A judgment is entered
after the trial. If judgment is entered for a landlord, he or she must ask the
court for an order of execution, which requires the tenant to move. After the
court issues the execution, it must be given to a state marshal for proper
service. The state marshal then serves the execution on the tenant. The state
marshal is required to use reasonable efforts to locate and notify the tenant
of the eviction date and time. After this period, the state marshal can
physically remove the tenant's possessions (CGS § 47a-26d).
7. Stay of Execution.
The law provides for an automatic five-day stay of execution. The tenant must
file any appeal within this period (CGS § 47a-35). The court may grant an
additional stay of up to six months if the tenant applies for it and proves, at
a hearing, that he or she cannot find other suitable premises in the same town
or an adjacent town (CGS §§ 47a-38 and –39).
Norb Leahy, Dunwoody
GA Tea Party Leader
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