Handling Unapproved Tenants and Occupants

Why Unapproved Occupants Matter

When people other than the approved tenant live in the rental property without consent, it creates serious legal and practical problems. Unapproved occupants can void insurance, breach body corporate rules, increase wear and tear, create liability issues, and complicate financial or legal proceedings if needed.

The rules around unapproved occupants vary significantly by jurisdiction. Some allow you to terminate quickly, others require formal tribunal processes, and all require proper evidence to prove breach of the lease.

What Constitutes an Unapproved Occupant

An unapproved occupant is someone who:

• Is not listed on the lease as a tenant
• Was not approved in writing by the landlord
• Is living in the property as a permanent or semi-permanent resident
• Does not have a separate written agreement with the tenant to live there

Who Are Unapproved Occupants?

• A new partner who has moved in
• Adult children or family members living as permanent residents
• Roommates or additional tenants not named on the lease
• People subletting or boarding in the property wihtout landlord permission

Evidence of Unapproved Occupants: What You Can Use

Strong Evidence (Legally Reliable)

• Inspection observations: During lawful inspections, noting additional personal items (clothing, toiletries, furniture) and signs of second residency
• Neighbour complaints in writing: Documented complaints from neighbours about seeing multiple people living there, different cars regularly present, etc.
• Tenant admissions: Email, text, or written statements from the tenant confirming another person lives there
• Body corporate or body corp complaints: Official complaints or notices from body corporate about multiple occupants or unauthorized residents
• Police or council records: If there have been calls to police or council regarding the extra occupants, these records can support your case

Weak or Inadmissible Evidence

• Trespassing entry: Observations made by entering without permission or outside the lawful notice period — will be excluded and may expose you to legal action
• Unlawful surveillance: Hidden cameras, listening devices, or monitoring private communications — inadmissible and illegal
• Second-hand complaints: "I heard from someone that..." Hearsay without documentation is weak; direct witness statements are stronger
• Social media posts: May be circumstantial but not definitive proof of residency (people can visit frequently without living there)
• Vague observations: "I saw someone in the backyard" without documenting frequency, pattern, or personal items is not strong evidence

Your Legal Rights as a Landlord

In Australia & New Zealand, you have the right to:

• Enforce lease clauses that limit occupants to named tenants only
• Require written approval for any additional occupants
• Issue breach notices requiring the unapproved occupant to leave
• Apply to tribunal for enforcement or termination orders
• In some jurisdictions, treat unapproved occupants as grounds for immediate or expedited termination of the lease

Jurisdiction-Specific Rules and Procedures

Steps to Address Unapproved Occupants

Step 1: Gather Evidence

Document everything lawfully:

• Note observations during inspections (dates, times, what you saw)
• Collect utility bills, council mail, or other official documents showing multiple names
• Record neighbour complaints in writing
• Take photos of personal items or signs of additional residency (only during lawful inspections)
• Keep copies of all communications with the tenant about the occupants

Step 2: Contact the Tenant

Before issuing formal notice, contact the tenant in writing:

• Reference the lease clause limiting occupants to named tenants only
• State factually what you've observed or learned about the additional occupant(s)
• Ask for an explanation or clarification
• Request written confirmation that the person(s) will leave by a specific date
• Allow 7-14 days for response

Step 3: Decide — Approve or Enforce Removal

You have two options at this point:

Option A: Approve the Additional Occupant

If you're comfortable with the additional occupant, you can approve them and amend the lease. It's recommended you gather some additional information first:

• Conduct a brief screening (employment verification, references, or credit check if desired)
• Understand the arrangement — is this temporary or permanent?
• Assess whether the property can safely and legally accommodate the additional person (strata rules, council regulations, fire safety)
• Ensure insurance remains adequate
• Make sure utilities, parking, and amenities are suitable for the additional occupant

For detailed guidance on assessment criteria and considerations, refer to our article When a Tenant Asks to Sublet, which covers approval factors relevant to additional occupants.

Once you approve, draw up an amended lease or side-letter adding the occupant as an authorized resident. Both tenants must sign the amendment.

Option B: Enforce Removal (Issue Formal Breach Notice)

If the tenant does not respond or resolve the issue, or if you do not approve the additional occupant:

• Use your jurisdiction's prescribed breach notice format
• Specify the unauthorized occupant(s) by name if known, or description if not
• Cite the lease clause being breached
• State the cure period (varies by jurisdiction: 3–14 days)
• Be clear about what compliance means (occupant must vacate by date X)
• Serve the notice properly according to your jurisdiction's rules

Step 4: Escalate if Needed

If the occupants do not leave within the cure period:

• Gather all documentation (notice, evidence, photos, communications)
• Apply to the appropriate tribunal (VCAT, RTA, Local Court, SACAT, etc.) with full evidence
• Present a clear case showing breach of lease, proper notice, and non-compliance
• If approved, pursue eviction or termination order as ordered by the tribunal

Difficult Scenarios: When Proof Is Unclear

Long-term Guests vs. Occupants

The line between a guest and an unauthorized occupant can be blurry. Generally, if someone:

• Has sleeping arrangements beyond a temporary guest room (own bedroom, keys, mail)
• Has registered their address with the property (utilities, government, employer)
• Is paying rent or contributing to household expenses
• Is staying for months rather than weeks

...they are likely an unapproved occupant, not a temporary guest. If the lease permits "reasonable guests," you still need evidence that the arrangement has become permanent or semi-permanent.

Subletting vs. Occupancy

If the tenant has rented out part of the property to someone else without your permission, this is a breach of the lease and potentially a separate subletting violation. The same enforcement procedures apply — breach notice, tribunal escalation.

Overnight Partners

A new partner occasionally staying over is not usually an unapproved occupant. However, if the partner has moved in permanently (clothes, toiletries, eating meals, using utilities, registered at the address), they become an occupant requiring approval.