by Jared Clemence
When there is no contract, and no rent payment, what kind of notice is required prior to suing for unlawful detainer? (eviction)
Today, we review the distinction between a tenant and a lodger by reviewing a 1939 case emanating from the San Diego County Superior Court. This case has been cited 27 times and remains good law.
What’s the difference between a lodger and a tenant?
“Guests in a hotel, boarders in a boarding house, and roomers or lodgers, so called, are generally, mere licensees and not tenants. They have only a personal contract and no interest in the realty.” (Roberts v. Casey (1939) 36 Cal.App.2d Supp. 767, 774, citing 1 McAdam on Landlord and Tenant, fifth edition, page 229.)
According to Roberts v. Casey, the distinction between a tenant and a lodger (such as, of a hotel), is a mix of both fact and law. In both situations, you have a person who pays money to the owner of land for rights associated with the use of a room, apartment, or building. However, the distinction is one that appears in the nature of those rights.
A lodger generally pays for a license to access the property. As a licensee, the lodger never actually takes legal possession of the unit. The proprietor retains legal possession and may come and go as the proprietor pleases. It sounds strange on its face, but no person thinks it strange when put into the context of room service. When we rent rooms at a hotel, we all know that the maid will come once each day to change trash, vacuum the floor, perhaps fold towels and bed sheets. The hotel guest (a lodger) need not give the maid permission to enter. Permission is assumed, and the maid keeps a key. The only privilege given to the guest is a courtesy that if the guest indicates that service should be delayed (“do not disturb” signs) then the maid will return at a more convenient time.
Unlike a lodger, the tenant takes possession and the landlord may not enter without permission.
It is not always so easy to determine when a person is one or the other. For example, in Roberts v. Casey, the renters had complete access to a full apartment unit. They did not share any toilets, showers, or other common areas. Often lodgers have access to a community common area, but no such area existed in this apartment building. The renters paid on a month-to-month basis (until they stopped paying, that is). This suggested that the renters might be tenants.
However, the building owner retained keys for every apartment. He provided newspaper services. He also entered apartments freely to provide cleaning services. Some of the apartments were rented by the day or the hour. All of these factors suggested that the building owner operated his business more like a hotel than an apartment complex, and this suggested that his renters might be lodgers.
Ultimately, the trial court found that the renters were lodgers and not tenants. The appellate court agreed. But it’s important to note that the distinction is not always clear.
What notice does a lodger or licensee require?
“[A]s a guest or lodger has, either by default in making payments due or otherwise, breached his contract he may by appropriate proceedings be ousted without the requirement of any advance notice. (Roberts v. Casey, supra, 36 Cal.App.2d Supp. 767, 775 [93 P.2d 654], emphasis added.)
Under the statutes available in 1939, the process of evicting a licensee did not include any statement requiring notice. However, the same statute required that a tenant be given at least a 3-day notice to cure or quit. In Roberts v. Casey, the court determined that no notice was required under the existing statutory scheme, but what would be required under the current statute?
Paragraph 1 of section 1161 of the Civil Code states “but in case of a tenancy at will, it shall first be terminated by notice, as prescribed in the Civil Code.” (emphasis added) This statement specifically requires notice only to terminate a “tenancy.” As we see in Roberts v. Casey, a tenancy and a lodging are distinct and different.
Along those same lines, though, the very first sentence of the same paragraph states that it applies “[w]hen the tenant remains in possession . . . ,” and it only speaks of licensees when “including the case where the person to be removed became the occupant of the premises as a . . . licensee . . .” (Civ. Code, § 1161, par. 1.) In fact, every paragraph of section 1161 regard actions by the “tenant,” and this suggests that a licensee may not be removed or found guilty based upon unlawful detainer action.
If not an unlawful detainer action, then how does one remove a licensee?
Roberts v. Casey determined that the complainant brought charges under the wrong section of the codes. Eviction under unlawful detainer was inappropriate, because the “tenants” were not tenants at all, but were lodgers instead. (Roberts v. Casey, supra, 36 Cal.App.2d Supp. 767, 775.)
(Roberts v. Casey, supra, 36 Cal.App.2d Supp. 767, 775 [93 P.2d 654].)
So, despite the fact that licensees should not be evicted under unlawful detainer action, the appellate court allowed the termination of the lodger’s rights to stand, but noted that the correct method would be to seek an action in ejectment. This action is not heard in unlawful detainer courts and thus would require use of a much longer civil proceeding.
The justices observed that the reality of the situation “would make the operation of hotels and lodging houses virtually impossible and it manifestly cannot be the law.” (Roberts v. Casey, supra, 36 Cal.App.2d Supp. 767, 775 [93 P.2d 654].) It would appear, based on this language, that the Roberts v. Casey court intentionally sets precedent to allow an action in ejectment through unlawful detainer courts in order to promote the smooth operation of hotels and lodging houses.
Regardless of whether a longer civil process or a shorter unlawful detainer action is appropriate, the court makes clear that licensees do not require advanced notice or a chance to cure.