How to evict house guest who refuses to pay rent

Without written contract, formal action advised

Question: At what point does a house guest become a “lodger” requiring official eviction procedures to remove him? I rent a house from my landlord and have extra space so I decided to rent a spare bedroom to an individual because he was in a difficult situation. I feel slighted, as I have opened my home to this person on what was clearly to be a temporary basis, but now he refuses to pay rent. There is no lease or any written agreement. How can I throw him out, now that he refuses to leave? Can I simply change the locks while the guest is gone? Once permission is revoked, at what point is he trespassing?

Landlord attorney James McKinley replies:

Your house guest is not a lodger. A “lodger” is defined as anyone who rents a room in a dwelling unit occupied by the owner if the owner retains a right of access to all areas of the unit occupied by the lodger and has overall control of the unit. If you were the owner of the house, then a lodger’s tenancy may be terminated by written notice. Upon expiration of the notice period provided in the notice of termination, any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. Also, the homeowner may have the local law enforcement agency assist in removing the lodger, without formal eviction procedures.

However, in your case, since you are renting the home, your house guest cannot be considered a lodger. Generally, the question of whether an occupant is a tenant (aka roommate) or a mere guest is a mixed question of law and fact, based on factors that include who has direct control over the premises, who is responsible for cleaning and maintaining the premises, who has keys to the premises, whether rent is paid, and length of occupancy.

If your house guest has been living with you for more than 30 days, he would likely be considered a tenant, and the tenancy could be terminated only by proper written notice. If your house guest did not vacate within the notice period, you would have to commence formal eviction procedures.

If your house guest has been an occupant less than 30 days, you do not necessarily have the right to use self-help procedures such as changing the locks to throw him out. In many jurisdictions, innkeepers have the right to use self-help methods to evict hotel guests who have occupied a unit less than 30 days, but typically landlords do not have the same statutory protection. Your guest may later claim that he had an oral agreement with you, and try to make you responsible for damages for an unlawful eviction.

To protect yourself, you should give your house guest written notice of termination of tenancy, and go through the formal eviction process if he does not vacate in the prescribed time.

Question: We leased a commercial office space two years ago. We live in a desert. The air conditioner has been expensive to maintain and has not worked well throughout our lease. We recently discovered through an HVAC (heating, ventilating and air conditioning) expert that the dual heat/air unit is obsolete, as it is more than 15 years old. The landlord wants us to replace it. Our contract says that we will “maintain it,” but our position is that it is no longer “maintainable.” No place in the contract does it say that we will replace the HVAC, only maintain it. Can he make us pay for it if it is now obsolete?

Property manager Griswold replies:

I would say you have a good argument that the landlord needs to invest in the new equipment and that you would then be responsible for the ongoing maintenance contract. The problem will come when there are no longer parts available or the equipment might even be illegal (based on the refrigerant) and has to be replaced. Your landlord is being extremely unreasonable. You may want to contact an attorney to have him or her send a letter to the landlord indicating that you believe the landlord is in breach of the lease if he or she doesn’t replace the HVAC equipment. A new unit will also be more energy-efficient, which will beneficial to you if you pay the utilities.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and James McKinley, principal in a law firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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