Key Takeaways

  • The legal definition of occupy involves possession or residence with intent; in modern leasing, “occupancy” is distinct from being a “tenant.”  
  • Tenants are parties to the lease (with payment and repair rights/obligations); authorized occupants may live there but generally have no contractual privity with the landlord.  
  • Typical lease practice: list all occupants, set guest-stay limits, and observe local maximum-occupancy caps (often “two per bedroom plus one”).
  • Misidentifying an occupant as a tenant (or vice versa) affects collection, notice, eviction, and insurance responsibilities.
  • “Legal occupancy” vs. “certificate of occupancy”: one concerns who may reside; the other is a code approval that the premises may be used for a stated purpose.

Occupancy

The taking possession of those things corporeal which are without an owner, with an intention of appropriating them to one's own use. The title by which one acquires property in a thing which belongs to nobody by taking possession of it with the design of acquiring. A mode of acquiring property by which a thing, which belongs to nobody, becomes the property of the person who took possession of it with an intention of acquiring a right of ownership in it.

To constitute occupancy there must be a taking of a thing corporeal belonging to nobody with an intention of becoming the owner of it. The taking must be such as the nature of the time requires; if, for example, two persons were walking on the sea-shore, and one of them should perceive a precious stone, and say he claimed it as his own, he would acquire no property in it by occupancy if the other seized it first.

Occupancy in Modern Landlord–Tenant Law

To sharpen the legal definition of occupy, it helps to separate occupancy (physical residence or possession with intent) from tenancy (a contractual status under a lease). A person may occupy a dwelling with the tenant’s or landlord’s permission yet not be a tenant and thus lack direct rights against the landlord. Tenants are bound by (and benefit from) the lease; occupants usually are not, unless added in writing.  

  • Tenants: party to the lease; must pay rent; can request repairs/alterations subject to the lease and law.
  • Occupants (authorized or unauthorized): may live in the unit but generally have no standing to demand repairs or make changes and no direct rent obligation to the landlord. 

Rules of Occupancy

The thing must be susceptible of being possessed; an incorporeal right, such as an annuity, could not be claimed by occupancy. The thing taken must belong to nobody; for if it were in the possession of another the taking would be larceny, and if it had been lost and not abandoned, the taker would have only a qualified property in it and would hold the possession for the owner.

The taking must have been with an intention of becoming the owner; if therefore a person non-compos mentis should take such a thing he would not acquire a property in it because he had no intention to do so. Among the numerous ways of acquiring property by occupancy, the following are considered as the most usual.

Practical Leasing Rules on Occupants vs. Tenants

Modern leases typically require the tenant to list all intended occupants and to follow local occupancy caps (commonly interpreted as two persons per bedroom plus one additional person, subject to local law). Leases often set guest-stay limits (e.g., maximum days before a guest must apply to become a tenant). 

  • Approval & documentation. Landlords may authorize specific occupants and document them in the lease; minors often do not require separate approval.
  • Conversion to tenant. An occupant can become a tenant only after screening/approval and being added to the lease or signing a new one.
  • Payments & repairs. Only tenants owe rent to the landlord; occupants may contribute privately to the tenant. Tenants can request repairs; occupants typically cannot.
  • Notice & removal. Tenants usually must give 30–60 days’ notice and can only be removed via lawful eviction. Occupants have limited protections and may face abbreviated removal processes, depending on local law and the lease.
  • If disputes arise. Where an occupant refuses to leave, one risk-managed approach is terminating the lease and requiring all to vacate, then re-leasing as appropriate (subject to any minor-occupant exceptions).

Goods Captured in War

Goods captured in war, from public enemies, were, by the common law, adjudged to belong to the captors. But by the law of nations such things are now considered as primarily vested in the sovereign, and as belonging to individual captors only to the extent and under such regulations as positive laws may prescribe. By the policy of law, goods belonging to an enemy are considered as not being the property of anyone.

“Legal Occupancy” vs. Certificate of Occupancy (Building Code)

Don’t confuse who may legally occupy a dwelling (a lease or permission question) with a certificate of occupancy, which is a building-code sign-off that the structure may be used for a specified purpose (e.g., residential use) and is not itself proof of tenancy rights. Leases typically control who can live in the unit; certificates address habitability/permits.

Unreclaimed Movables

When movables are casually lost by the owner and unreclaimed, or designedly abandoned by him, they belong to the fortunate finder who seizes them, by right of occupancy.

The benefit of the elements, the light, air, and water, can only be appropriated by occupancy.

When animals ferae naturae are captured, they become the property of the occupant while he retains the possession; for if an animal so taken should escape, the captor loses all the property he had in it.

It is by virtue of his occupancy that the owner of lands is entitled to the emblements. Property acquired by accession is also grounded on the right of occupancy. Goods acquired by means of confusion may be referred to the same right. The right of inventors of machines or of authors of literary productions is also founded on occupancy.

Abandonment, Possession, and Intent to Occupy

Historically, the legal definition of occupy also encompassed taking possession of ownerless or abandoned property with intent to claim it—reinforcing that intent plus control is central to occupancy. Today, abandoned-property questions in rentals are usually resolved by lease terms and local statutes, but the underlying principle remains: possession without the requisite intent (or without meeting statutory steps) may be insufficient to vest rights.

Frequently Asked Questions

  1. What’s the difference between a tenant and an occupant?
    A tenant signs the lease and owes rent to the landlord; an authorized occupant may live there but usually has no direct contractual rights or obligations.  
  2. Do all occupants have to be on the lease?
    Leases commonly require listing all occupants, set guest limits, and follow local maximum-occupancy caps (often two per bedroom plus one).
  3. Can an occupant become a tenant later?
    Yes—only by applying, passing screening, and being added to the lease or signing a new one as a co-tenant.
  4. Who can request repairs or negotiate changes?
    Tenants can; occupants typically cannot and must live “as-is” unless the landlord agrees through the tenant.
  5. What happens if an occupant refuses to leave?
    This can trigger a tenant-versus-occupant dispute; one approach is to end the lease and require all to vacate, then re-lease appropriately (subject to local law and minor-occupant exceptions).

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