Q: My girlfriend moved in during the middle of my lease. After about a month, the landlord found out and immediately gave me a notice to get her out or be evicted. But my "girlfriend" won’t move out (we aren’t so close anymore; I think she’s trying to shake me down for money; she never even paid any rent!). What can I do to legally get her out and avoid eviction? –Buster B.
A: You’re not only midway through your lease, you’re halfway through an advanced class in the School of Hard Knocks. You are not going to like this answer.
Your options depend on how the law would classify your ex. She is either a co-tenant, a subtenant, or an overripe guest. Let’s consider each: If she had remained on the property for an appreciable period of time, with the knowledge and consent of the landlord, she would be a co-tenant, even if she did not pay rent. In that case, she’d be entitled to stay, and you could not get her out (only the landlord can evict tenants).
But, you say, as soon as the landlord discovered her, he demanded that she leave! So she’s not a tenant. But perhaps she’s a subtenant — someone who has a contractual relationship with you, who pays rent in exchange for the use of the apartment. But that’s not what happened here, either. So maybe she’s a guest — someone staying with your permission, but with no contractual right to be there.
Aha! You certainly have the right to toss out a guest who has overstayed her welcome, don’t you? Can’t you call the cops to remove a guest-turned-trespasser? Theoretically, yes, but in practice, the police will not want to get involved.
All your ex has to say is, "This is my home!" for them to suspect that she is a full-fledged tenant, entitled to an orderly eviction process. Worried that they will be assisting you with an illegal self-help eviction if they remove her, the officers are likely to tell you to see your lawyer.
Even if you have the cooperation of your landlord, the news isn’t much better. The landlord can’t evict her because she is not his tenant. The most he can do is to terminate your lease for having an unauthorized occupant in the rental. And while he certainly could terminate, then turn around and sign a new lease with you, that’s just a bunch of paperwork — while your ex remains.
The landlord would have to be willing to call the police and ask them to remove a squatter/trespasser — and he, like you, will hear the same hesitation from the officers.
Just because there’s no definitive legal answer doesn’t mean, however, that the two of you can’t figure this out short of calling upon the police or the lawyers. Find out if your city or county offers housing mediation (start by calling the city attorney’s office). If your ex is willing to try to resolve this standoff (surely she must not enjoy her living situation), a skilled mediator may be able to help the two of you craft a solution you can live with.
Be forewarned — it may cost you. In legal jargon, a buyout is a perfectly acceptable way to settle a dispute. Focus on that: buyout, not shakedown.
Q: I’m about to advertise my two-bedroom flat. I know that as many as five people may live there, according to my state’s occupancy standards, and I’ve rented to (five) occupants before. I’ve also had as few as two.
Naturally, the wear and tear on the place goes up as the number of residents increases, which means that I have higher refurbishing costs at the end of a five-person tenancy than I do with a two-person tenancy. So can I make the rent dependent on the number of residents — like setting a basic rent, then adding a certain amount more for each additional resident? –Dottie W.
A: There’s a certain logic to your argument, that’s for sure. Every landlord wants to cover her costs, and because refurbishing expenses go up as the number of occupants increases, it would no doubt help if you could cover those expenses with the rent from the outset.
But there are two fatal flaws to this plan: one legal and one practical.
First, to the legal landmine you’ll be setting up. Suppose a family of five submits an application, and learns that they will pay not only the basic rent, but three times that "additional amount" you’ve designated for each resident beyond the initial two. Then, they discover that two adults who apply together will be charged only the base amount.
You can see where this is going — right to a fair housing agency or lawyer, who will claim that your policy has the effect of discriminating against families with children. No matter that you intend to apply your policy to any mix of residents, including a group of three, four or five unrelated adults.
Under federal law, the simple effect of your policy, intentions aside, will suffice to get you in legal hot water. Whether you can get yourself out of that hot water is debatable, but really beside the point — who in their right mind would invite such litigation in the first place?
Second, on a purely practical level, you’re really not thinking like a seasoned pro. Your flat is one of many like it in your town or neighborhood, and market forces have combined to make all of these comparable units worth a certain amount of rent per month.
That it can legally accommodate five people is part of the equation; five people with modest budgets will be just as attracted as will one person who wants one of the bedrooms as an office and the rest of the place to herself. All of these sets of renters will become your applicant pool.
But if you set the rent at, say, $1,500 for the single renter, but $2,500 for five, you may well miss the well-off single renter — the very person you’re not-so-secretly hoping to rent to! That renter, unconvinced by your rent reasoning, may conclude that the place is worth only $1,500, and pass it by.
Most landlords will tell you that the way to set your rent is to study the comps. If the rent does not cover your costs and profit expectation — costs that must include projected expenses of refurbishing a five-person rental — then you’ve got to cut costs (or lower your profit hopes), not fiddle with the rent.
Increasing it beyond the going rate will price you out of the market; decreasing it according to the actual number of residents not only invites a legal challenge, but may work to your disadvantage by discouraging the very applicant you’d like to see.
Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at [email protected].
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