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Evicting unwelcome guest easier said than done

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Q: I’ve allowed a college friend to stay at my rented home for some time, without paying rent or utilities. My friend changed his address on his ID cards to my address, and gets mail here. I’ve asked him to move on but he shows no signs of doing so. Does he have any tenant rights? If I need to get heavy, how can I evict him? –Betsy S.

A: You’re in a difficult position. Not only do you have an unwelcome house guest, but, depending on the terms and conditions of your lease, you may have a problem with your landlord, as well. Ironically, the landlord may be in the best position to bail you out.

First, is your freeloading friend a resident (with some legal rights) or a guest? That depends on a number of factors. That he pays you no rent or utilities suggests guest status; changing his ID and receiving mail at your house suggest tenant status. If your landlord is aware of his presence and seems to have accepted it, this may give him resident status too. For now, let’s assume that he’s no longer a guest, but has become a legal resident of some sort. Question is, what sort?

Most leases prohibit subletting — renting all or part of your rental to a third person — without the landlord’s consent. Landlords do this in order to make sure that they have an opportunity to screen all residents. Landlords who trust their tenants, or who are convinced that the situation will be short-lived, may agree to the sublet.

Most will refuse a sublet, however, and insist on adding the newcomer to the lease, which subjects everyone living in the rental to the "joint and several liability" rule. That rule allows landlords to demand the entire rent from any cotenant, and to evict everyone for the misdeeds of just one. By contrast, subtenants have no direct relationship with the landlord, though they will lose their right to stay if the tenant is evicted for nonpayment of rent or other misbehavior.

Does your landlord know about the presence of your friend? If so, what is the understanding? If the landlord has agreed to a sublet, then you are actually your friend’s landlord, and you can take steps directly to oust him. But just what steps you can take is a tricky question, and the answer will depend on state law. In some states, you will need to go through the regular eviction process; in others, your guest will be a boarder or lodger, who can be ousted more easily (by the police, as a trespasser).

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If your landlord knew nothing, on the other hand, your long-term guest is merely an unauthorized occupant, as far as the landlord is concerned. According to most leases, that’s grounds for termination of your tenancy. That’s certainly not what you want, but it might have the desired effect of getting rid of the illegal subtenant. Your freeloader may take off once the landlord gives you a termination notice, at which point you could initiate a charm offensive to convince the landlord to rescind the notice and allow you to stay, without your unfortunate college baggage.

And if your friend stays put? The landlord may or may not follow through with an eviction. Unless he’s really steamed at your deception and wants both of you out, you may not have to leave. Unfortunately, because only landlords can evict co-tenants, you’ll still be stuck with your unwelcome friend.

The lesson here is that renters who offer places to stay to long-lost pals need to think and plan ahead. Start with a straightforward conversation with your soon-to-be house guest. Is the friend’s expected length of stay within your "guest stay" limits? If not, are you prepared to sublet to him? What will the landlord say? Do you want to actually add him to the lease? And if you’re going to play this one under the radar, are you prepared for the difficulties this could create if your pal decides that your couch is the best one in town?

Q: Our tenants have an adult son who has lived with them since before he was 18. When the family moved in, he was listed as an occupant, and there have been no modifications to the yearly lease over the past five years except for a couple of raises in rent. The parents want their son to move (he won’t contribute to the rent, apparently), but he refuses. I don’t want to get involved, but I’m worried. Is the son a tenant? How can the parents legally get the son to move? –Rigoberto R.

A: Your hesitation about getting involved is certainly understandable. And in fact, there’s legally not much you can do now, until the lease is up.

When families rent a home, landlords typically ask for the names of all adult residents (those over the age of 18 or, if not yet 18, those who are married, in the military, or legally emancipated). These are the people who are responsible for paying the rent and for abiding by the terms and conditions of the lease. Landlords also ask for the names of other occupants: the children. The landlord needs to know how many people, in sum, plan to reside in the unit, so that its occupancy limit is not exceeded. Children are not financially responsible for the rent, but their bad behavior, if serious enough, can form the basis of a warning, termination or eviction on the grounds that the parents are legally responsible for the acts of their children.

Careful landlords, when seeing teenagers, will also ask for the children’s ages. Though some might fear that this is somehow an invitation to a fair housing lawsuit, there’s a legitimate business reason for it. Once those kids turn 18, they are adults and should be treated as any other adult occupant: They should be added to the lease as co-tenants.

Adding 18-year-olds to the lease gives the landlord one more place to look if the rent has not been paid. It also drives home the rule that the parents will be responsible for whatever damage or mischief the young adult might cause. But it has a flip side, as far as the parents are concerned. Once the young adult becomes a co-tenant, he cannot be forcefully removed from the rental except through the normal eviction process. As shocking as it may seem, that new co-tenant has the same right to stay in the rental as the parents. That he isn’t contributing to the rent is immaterial.

In your case, you simply allowed the son to remain after he became an adult. There’s nothing wrong with that. By openly accepting his presence, however, you have implicitly acknowledged him as a co-tenant, despite never formally adding him to the lease. He has full co-tenant rights, and can’t be told to move by anyone except you.

Of course, you can’t evict a lease-holding tenant for just any reason. Unless the entire tenancy has failed to pay the rent or has violated another important lease clause or law, they are entitled to stay. And you can’t cancel the lease as to one tenant but not as to others.

When it’s time to renew the lease, however, you can offer it to just the parents — in most places. Yes, there’s a catch. If you live in a city with "just cause" eviction protection (common in many cities in California and in areas of New York), you may have a hard time offering a renewal only to the parents. Whether the ordinances in these cities differentiate between a regular, arm’s-length co-tenant and a co-tenant who was a former child-occupant is beyond me. But if other readers are parents in one of these cities, they might want to find out. Just in case those college plans fall through.

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 janet@inman.com.

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