A guest is a guest is a guest, except when they become a tenant.

Throughout the COVID-19 pandemic, hoteliers have wanted guests to stay at their properties, especially guests who extend their stays. While hoteliers certainly welcome a guaranteed source of revenue when demand is down, operators do need to be aware of how and when guests become tenants and hoteliers become landlords.

The laws regarding when hotel guests become a tenant haven’t really changed in recent years, but given what has happened during the pandemic, there are probably a number of properties that have had to consider tenancy laws that hadn’t before, said Dana Kravetz, firm managing partner at Michelman & Robinson.

Being considered a tenant gives someone more legal protections, creating a number of challenges for hoteliers, including having to go through eviction proceedings to remove the guest.

“If there’s an issue relative to payments, then it becomes that much more difficult to get the eviction that you need to do to pursue an unlawful detainer process,” he said.

The main issue is whether and when the landlord-tenant code applies, said Tara Lattomus, attorney at Eckert & Seamans. The code is set by state law, so the details can vary by state. Many jurisdictions set a 30-day time frame, so if a guest stays past that threshold, they would be considered a tenant. Depending on the state, courts may use other factors to determine whether someone is actually a tenant.

“Whether the person has a property right in the room or area they’re staying in is going to be determined by the state landlord-tenant law,” she said.

Not every state has a law on the books setting a time limit when a person becomes a tenant, said Cliff Risman, partner at Gardere Wynne Sewell. Hoteliers in these states who know their guests intend to stay long term should write up an agreement that states the hotel is not setting up a landlord-tenant relationship.

However, in states that have laws that do define this relationship, it would not matter what the contract states, he said.

Hoteliers can use the unlawful detainer process in court to reclaim a guestroom through eviction, Kravetz said. Through this, hoteliers can get a court order, retake possession of the room and have a sheriff come in and collect the tenant’s belongings and auction them off to repay money owed. While this process removes the unwanted guest, it’s a last resort.

“If you’re finding yourself in that place, you already lost,” he said.

Instead of having to take this route, hoteliers should be cognizant of what it would take to prevent the tenancy from being created, he said. Arguably, the only way to break the stay is by having the guest move out of the guest room before tenancy is established. A contract stating a guest’s stay has stopped and started over or simply moving a guest into another guest room likely aren’t enough.

If a hotelier in a state with defined landlord-tenant statutes is running into issues with a guest, such as nonpayment, they would certainly want to deal with that before they cross the threshold, Risman said.

Even if a guest is paying, hoteliers have the right to remove a guest if they are causing other sorts of problems, such as making excess noise or damaging the guest room, he said.

As a hotel guest, a person doesn’t have the same property rights they would as a tenant, Lattomus said. That means hoteliers can take actions to remove a guest if the situation warrants it without needing to follow their state’s eviction process they would if trying to remove a tenant.

For instance, hoteliers can lock a guest out of a guest room by deactivating the key card, she said. The hotel could then store the person’s belongings until they are ready to remove the items. If the person refuses to leave, the hotel can call the police to remove a guest.

When guests make a reservation at a hotel, they are defining how long they intend to stay, so it shouldn’t be any surprise when their stay ends, she said.

Before taking action to remove a guest from a hotel, it can be helpful to have a clear and upfront conversation with the guest before they become a tenant to explain the guest must leave by a certain date, Kravetz said. If the guest states he or she won't leave, then it would be time to bring in the police for trespassing.

One type of long-term guest that hoteliers have served is one who was forced to move into a hotel because of losing a home for any number of reasons during the pandemic. Hoteliers don’t want these guests to establish tenancy because these guests are coming in with potentially few financial resources to begin with, Kravetz said.

“The odds of them being unable to pay the hotel or motel price per day is pretty real,” he said.

A non-payment issue could arise, and that now-tenant could have an extended stay for free, while the operator must pursue a legal process to remove the tenant, he said. On top of that, there’s no real likelihood of recovering the money of any legal expenses or rental value.

Many hotels made deals with colleges and universities to house students off-campus during the academic year. These situations could potentially have given rise to a landlord-tenant relationship, he said. The goal was likely to be kind to local universities by creating off-campus housing and quarantine hotels for students, but it might have created a situation they weren’t expecting.

The pandemic has created a lot of situations that most transient hotels normally haven’t had to handle much before, he said. They are dealing with social management and operations related to a law they otherwise never had to consider to any great degree prior to this.