If you’re wondering how to evict a family member—and maybe feeling more than a bit guilty over the prospect—well, don’t be so hard on yourself: You have plenty of company on this one.
Many homeowners eventually wind up with a guest or two who have worn out their welcome and refuse to vacate your space, and sometimes they happen to be relatives. The people you now want to evict may have promised they wouldn’t be a burden (and most guests aren’t), but if you’ve asked them to leave your home or a rental property, and they won’t budge, an eviction—taking legal action to remove a tenant—is your final option.
But does the eviction process get more complicated if the landlord is trying to evict someone they’re actually related to?
Is the relative you want to evict a tenant, licensee, or neither?
States have different laws on exactly how to classify someone who stays in a home or rental unit, whether he rents, leases, or stays without any agreement or payment of rent. In the eyes of the law, your visitor can be classified as a tenant or licensee.
In some areas, he’s considered a tenant when he has a lease or pays rent, but in other areas a tenant is simply someone who occupies a space you own (with no lease or exchange of rent money).
A person who stays in the home of a “landlord” for an extended period of time can also be considered to have a lease and be classified as a licensee, depending on state law. Some states even say it’s acceptable to ask the person to leave and remove his belongings, no eviction notice or legal action necessary, as long as rent wasn’t exchanged.
If you’re a reluctant landlord trying to evict a guest from your house, the first thing you need to do is establish how your state classifies this (now) unwelcome visitor. If he’s considered a tenant or licensee, you as the landlord will need to go through the eviction process.
How to evict a family member
No one eviction fits all; different cities and states have different eviction procedures and timelines. But other than the potential emotional burden, the eviction process with a relative of the landlord is no different from evicting any other tenant.
The truth is, most places don’t allow landlords or property managers to instantly evict a boarder, regardless of who he is or what he’s done to deserve eviction, says Zachary D. Schorr, a Los Angeles real estate attorney.
If the people you want to evict are considered to be tenants or licensees, Schorr says, a landlord can’t just throw them out or just change the locks.
“That’s universal,” he says. “You have to go through the court system.”
Generally, this is what you as the landlord need to do to evict someone:
- Serve your tenant with a notice to vacate that states when and why he must vacate; most places require filing a three- to 30-day notice that the tenancy has ended. Be specific, and state what he must do to reinstate his lease (if anything), and by what deadline. The eviction notice must be written carefully, and the help of an attorney could make the eviction process go more smoothly. If your tenant has an unexpired lease, you may still be able to evict him for unpaid rent or for breaking the lease agreement terms. Note that you still may owe a security deposit refund to your tenant if he is not behind on his rent, depending on the lease and state law.
- If your tenant doesn’t leave by the deadline, the next step is filing an eviction petition with the courts—some places have housing courts, some have court hearings for eviction cases in county courts—and asking for an unlawful detainer hearing, where a judge listens to your reasons for eviction and checks your notice to vacate. If the judge rules for you, he will issue an order of eviction and a writ of possession, which gives your property back to you.
- If your tenant still refuses to vacate the premises after he receives an eviction notice, he is now in violation of a court order and you can call law enforcement to remove him. The sheriff or the sheriff’s deputies will evict your tenant. (Note: Memories of eviction proceedings will make future family get-togethers rather awkward.)
Since personal feelings are involved, the tenant eviction ordeal can be messy. Here’s how to facilitate eviction and make it less excruciating.
Consult a lawyer: The first thing a landlord should do is consult a local attorney specializing in landlord-tenant law and get legal advice. Evictions are heavily regulated by state and local law, and a local attorney will know state-specific information and step-by-step processes, including landlord-tenant laws, what type of eviction notice landlords are required to give, documents landlords must file, and checks they shouldn’t cash.
Don’t take rent: If you’re trying to evict someone, don’t accept rent because taking rent as a landlord will give your unwanted tenant more rights, says Schorr.
“In California, for example, if they’re paying rent and you want them out, they may be entitled to 30 days’ notice. If they’re there for more than one year it’s 60 days’ notice. And every time you accept rent, the clock starts again,” he says.
Write down the lease terms: When you let anyone live in your house longer than a Christmas vacation, it’s a good idea to send him an email outlining a rental agreement. If you expect your recent college grad who’s crashing with you to look for work and take out the trash, write it down. If you have rules about your guest using recreational substances, spell them out. And if your tenant breaks those rules, give him reasonable time to find a new place. Most jurisdictions don’t like to make people homeless “at the snap of a finger,” Schorr says.
Try to work it out: In the end, even paying a renter or nonpaying guest to go away might be faster and cheaper than trying to evict him. Eviction can cost $1,000 to $10,000 in legal fees, and sometimes more if the case goes before a jury.
“I’ve had one eviction going on for a year and a half. We’ve been fighting like crazy,” Schorr says. Paying for a session or 10 of family counseling will likely cost less money than an eviction. Plus, it may foster a closer relationship between you and your relative once he’s living happily somewhere else.
The post How to Evict a Family Member Who Has Worn Out His Welcome appeared first on Real Estate News & Insights | realtor.com®.
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