UNAUTHORIZED OCCUPANTS: WHAT STATUS DO THEY HOLD IN PREMISES LIABILITY CLAIMS?
When a lawsuit arises from an injury that occurs as a result of a dangerous condition on another's property, this type of claim is called “premises liability.” Normally, those in possession or control of real property (aka a “possessor”) owe a duty of care to individuals who access such property. In all but a handful of states, this duty is ultimately dependent on the plaintiff's status on the land. In these jurisdictions, generally the only duty possessors owe to undiscovered trespassers is to refrain from “willful and wanton conduct” or “intentional misconduct.” Absent specific evidence, this is a very difficult standard for plaintiffs to overcome.
Oftentimes, however, it is not always clear under what circumstances an injured party may be considered a trespasser; particularly when the injury occurs at an apartment complex. Notably, it is unclear what status a plaintiff holds when he/she is injured while living at – or otherwise occupying – an apartment without authorization from the landlord. Individuals who fall into this category are frequently referred to as “unauthorized occupants.”
The U.S. Department of Housing and Urban Development defines an “Unauthorized Occupant” as “a person who, with the consent of a tenant, is staying in the unit, but is not listed on the lease documents or approved by the owner to dwell in the unit.” An example of an unauthorized occupant would be a tenant's significant-other who moves into the apartment without the consent of the landlord. Another example would be a person paying or otherwise compensating a tenant to “rent out” all or part of an apartment without the landlord's knowledge or permission.
Conversely, the U.S. Department of Housing and Urban Development defines a “guest” as “a person temporarily staying in a unit with the consent of the tenant or another member of the household who has express or implied authority to consent on behalf of the tenant.” Although landlords do not expressly invite guests onto their property, it is generally accepted that guests receive an “implicit” invitation as it should reasonably be expected that tenants may invite people to visit or temporarily stay at their apartment. As a result, in nearly all jurisdictions, social guests are afforded the same duty as tenants and other invitees.
However, logic dictates under most circumstances that an unauthorized occupant cannot reasonably be said to have received an implied invitation from the landlord. This is particularly true in cases where the unauthorized occupant fails to benefit the landlord or where his or her occupancy violates a law. Nonetheless, because an unauthorized occupant receives an express invitation from the tenant, these individuals do not always meet the threshold for most state's common law and statutory definitions of a trespasser.
Consider the state of Florida for example. There, the standard jury instruction defines an “invitee or invited licensee” as “[a] person [who] is invited on land or premises of another when he enters or remains there at the invitation of the owner or possessor.” Here, because the invitation must come from the possessor, an unauthorized occupant should not be held to this status. However, Florida Statute also defines an “undiscovered trespasser” in pertinent part as “a person who enters property without invitation, either express or implied…” Further, the statute defines the term “invitation” as meaning “that the visitor entering the premises has an objectively reasonable belief that he or she has been invited or is otherwise welcome on that portion of the real property where injury occurs.” Notably, as the statute is silent as to whom the invitation must come from, the unauthorized occupant's status arguably fails to meet the legal standard for a trespasser. While it is tempting to merely dismiss this ambiguity as “an issue of fact” (and issues of fact may indeed exist), it is clear that the ultimate determination as to whom the invitation must come from does not “depend on the probative value of any evidence,” and thus is a pure question of law that should be determined by the court.
However, while this question of law has arguably never been directly answered by the courts, there are nonetheless strong arguments that can be made to both the judge and jury for why an unauthorized occupant must be held to the status of a trespasser. The first and most important argument is that the plaintiff's presence was a direct violation of the express terms of the lawful occupant's lease agreement. Most residential lease agreements have terms that forbid unidentified individuals from occupying the apartment absent written consent from the landlord. Additionally, many lease agreements have restrictions or required disclosures regarding the tenant's criminal record. To the extent the plaintiff has a criminal record – even a misdemeanor – the defense may argue that such conviction(s) disqualify him or her as a lawful occupant.
Next, it should be determined if the plaintiff's presence violated any local, state or federal laws. Most notably, when tenants are receiving federally subsidized rental assistance – which is oftentimes calculated by household income - there are additional laws and regulations that are triggered. Most notably, an unauthorized occupant's presence appears to be a clear violation of Section 42 of the Internal Revenue Code, as well as the occupancy guidelines for The Low-Income Housing Tax Credit (“LIHTC”) and United States Department of Housing and Urban Development (“HUD”) programs. Additionally, to the extent the unauthorized occupant is employed or receiving independent subsidies, this unreported household income could easily disqualify the tenant from his or her rental assistance, potentially making the tenant and unauthorized occupant guilty of fraud.
Finally, it should be determined if the unauthorized occupant's presence on the property would be detrimental to the landlord by exposing it to financial or administrative liability. For example, if the property is an affordable housing project, the defense may argue that the unauthorized occupant's presence made the landlord noncompliant with federal law, potentially resulting in fines, loss of tax credits or an inability to participate in future affordable projects.
In cases where there is no issue of fact that the plaintiff was an unauthorized occupant, defense counsel can and should move for summary judgement. In doing so, rather than focusing on the unauthorized occupant being a per se trespasser, it is probably easier to establish that he/she cannot reasonably be held to the status of an invitee or licensee. Specifically, it will be necessary to provide authority that makes it clear that any implied invitation must come from the possessor and not the tenant. Depending on the circumstances of the case, as well as the available case law in your state, defense counsel may consider citing section 52 of The Restatement (Third) of Torts: Liability for Physical and Emotional Harm. Notably, the Restatement sets forth a unique standard referred to as “flagrant” trespassers. While the Restatement does not attempt to fully define a flagrant trespasser, it explains that the "core distinction between trespassers is the extent to which the trespass is offensive to the rights of the land possessor." Depending on how inflammatory the unauthorized occupancy is, the Restatement may be enough to convince the court that he/she is a trespasser as a matter of law.
Whether the issue is ultimately determined dispositively by a judge, or at trial by a jury, if a possessor can establish that the plaintiff was an unauthorized occupant of the premises, it has a good chance of substantially reducing the duty of care owed to such individual.
 Bovis v. 7-Eleven, Inc., 505 So .2d 661, 662 (Fla. 5th DCA 1987); see also, Hix v. Billen, 284 So.2d 209, 210 (Fla.1973) ("There is a distinction to be noted between active, personal negligence on the part of a landowner and that negligence which is based upon a negligent condition of the premises.").
 See Gladon v. Greater Cleveland Regional Transit Auth., 75 Ohio St.3d 312, 315, 662 N.E.2d 287 (1996); Stitt v. Holland Abundant Life Fellowship, 462 Mich. 591, 596, 614 N.W.2d 88, 91 (2000); Evans v. Phila. Transp. Co., 418 Pa. 567, 212 A.2d 440, 443 (1965)).
 See § 768.075(3)(a)(3), Florida Statutes
 U.S. Department of Housing and Urban Development Handbook 4350.3: Occupancy Requirement of Subsidized Multifamily Housing Programs.
 Fla. Std. Jury Instr. (Civ.) 401.16(a).
 § 768.075(3)(a)(3), Florida Statutes
 Comment, Restatement (Third) of Torts § 51 (Am. Law Inst. 2009); See also, Hayes v. D.C.I. Properties-D KY, LLC, 563 S.W.3d 619 (Ky. 2018).