What Are You: A Hotel Guest, Tenant, or Transient Occupant?

• Author: Chamorro, Miguel J.
• Position: Business Law

Florida hotels occasionally encounter the following problem: They want a guest gone, but the guest cannot be easily removed because the guest is actually a tenant. In Florida, there is no legal requirement that residential tenancies be in writing. And thanks to vague law, the occupant of a hotel can claim to be a tenant rather easily. That last year's hurricane rendered the hotel their primary residence, that their children are enrolled at a nearby school, that their driver's license reflects the hotel's address, that they have been there for a long time, and that they have nowhere else to go, are all winning arguments for the guest-turned-tenant.

The benefits of the legal transformation, so to say, of a hotel guest into a tenant are substantial. Hotels, which are formally known as public lodging establishments, according to F.S. [section]509.013(4)(a), cannot immediately remove a guest from its premises for reasons such as nonpayment or being a nuisance, as would be the case with a restaurant that wants to remove a patron. (1) The law protects individuals who intend to make of their hotel room a home, even in the absence of a written lease. A hotel may call the police for help, but the police may refuse to get involved in a civil dispute. The hotel may also lock out such guests to motivate them to leave, but, in doing so, it risks being sued for an unlawful eviction. Thus, the hotel's recourse may be to commence eviction proceedings--expensive and time-consuming, but the safest bet.

Anecdotal evidence suggests that an increasing number of hotel guests in recent years have successfully asserted themselves as tenants and have avoided being immediately removed from hotels. Doing so buys them precious time. If such a guest does not pay the bill (a/k/a the rent), the hotel must serve him or her a three-day notice, wait for the three business days to expire (assuming it was hand delivered and that the default is not non-monetary, for which additional notice is required), file the lawsuit, obtain service of process, obtain a judgment of possession, obtain a writ of possession, wait for the sheriff to post a 24-hour notice and then, finally, consummate the eviction. To make matters worse, the hotel is forced to incur the expense of resorting to the judiciary while continuing in an undesired relationship in which it is likely losing income.

It is critical for the public lodging industry and individuals, therefore, to distinguish transient occupants (i.e., ordinary hotel guests, as to whom the public lodging law, F.S. Ch. 509, applies) from nontransient occupants (i.e., tenants, as to whom the Florida Residential Landlord and Tenant Act (FRLTA), F.S. [section][section]83.4083.683, applies). This article explores the differences and provides practical advice to all parties affected.

The Summary Removal of Ordinary Guests (i.e., Transient Occupants)

As already noted, it is easier for a hotel to remove an ordinary guest (i.e., a transient occupant) than it is for a landlord to evict a tenant. Removing a transient occupant merely requires a request for departure. (2) The FRLTA does not come into consideration. (3) A hotel need only notify the transient occupant that it no longer wishes to entertain him or her as its guest and, "at the time such notice is given," reimburse the unused portion of any advance payment. (4) It suffices to give the transient occupant the following statutory warning, orally or in writing:

You are hereby notified that this establishment no longer desires to entertain you as its guest, and you are requested to leave at once. To remain after receipt of this notice is a misdemeanor under the laws of this state. (5)

A transient occupant who remains on the premises after being so requested to leave, may be prosecuted for a second-degree misdemeanor. (6) The hotel may call any law enforcement officer of this state for assistance and it becomes the duty of such officer, upon the hotel's request to: place under arrest and take into custody ... any [transient occupant] who violates [[section]509.141(3), FLA. STAT.] in the presence of the officer.... Upon arrest ... the [transient occupant] will be deemed to have given up any right to occupancy or to have abandoned such right of occupancy of the premises, and the operator of the establishment may then make such premises available to other guests. (7)

The immediate removal procedure defers to the hotel's freedom to choose with whom it does business. (8) The statute upon which it is based provides a host of reasons that a hotel can cite as grounds for removing transient occupants: the illegal possession of controlled substances; being intoxicated, profane, lewd; brawling; indulging in language or conduct that disturbs the peace and comfort of other guests...