One of the most difficult situations a homeowner can encounter is when a houseguest has overstayed their welcome. Most homeowners try to avoid that awkward conversation and nine times out of ten, the houseguest will voluntarily leave. However, in those rare cases when a houseguest refuses to leave, a homeowner should be advised of their legal rights and the steps they should take. This is especially true when it comes to evicting family members. Evicting family members seems to be a gray area in real estate law which requires legal expertise. These are five steps to consider if you ever encounter a similar problem:
1. Politely ask the family member to leave
Sometimes all it takes is to ask the family member to leave. Even though the family member might not pay rent, they may have more rights than you expect. Asking the family member to leave could avoid any further family issues or even the stress of taking legal action.
2. Determine whether the family member is a guest, lodger, or periodic/tenant-at-will
If the family member refuses to leave, it's important to know what type of guest the law considers them. A person staying in someone else's home can have one of three legal statuses: guest, lodger or tenant.
- Tenant: If the family member is a tenant, they likely pay rent and can be evicted through a formal eviction process.
- Guest: Guests generally do not pay rent and can become trespassers. Police removal is possible. However, this is unlikely if there is no real threat or disturbance of the peace.
- Lodger: A lodger is a person who shares a dwelling with the owner but does not have a specific assigned space. A formal eviction is not necessary.
3. Send a demand letter
If asking the family member to politely vacate does not work, sending a demand letter might be a possible option. However, a letter written by an attorney will likely carry more weight and establish your legal rights.
4. File an unlawful detainer
If all else fails, an unlawful detainer can be filed. Regardless if the family member is deemed a guest, lodger, or periodic/tenant at will a 30-day notice must be given before filing an unlawful detainer. However, if the family member has been there for over a year, they will require a 60-day notification before filing a summons and complaint.
5. Ask an attorney
As discussed above, evicting family members is a gray area in the law. Determining when and how to take legal action can be complicated and complex. If a family member refuses to leave, they may be protected under the law and advice from an attorney may be necessary.
At the Nialis Law Group, we represent homeowners with complex eviction scenarios and have years of experience with unlawful detainer filings.
Because of the generality of the information in this article, the information may not be applicable in all situations. This discussion should not be relied upon in lieu of obtaining specific legal advice for specific situations.
ABOUT NIALIS LAW GROUP APLC ("NLG")
NLG is a full service real estate and business litigation and transactional law firm providing the highest quality service and advice to national and local businesses and individual clients. The firm has the resources to handle large projects while providing clients with personal communication on all matters.
Within the field of real estate, the firm's services include: residential and commercial property purchases and sales; boundary, easement, and title matters; foreclosure problems and construction defects; commercial leasing; homeowner association disputes; environmental law; escrow law; and real estate brokerage law. The firm also provides estate planning.
Mark Nialis holds the highest rating from the Martindale-Hubbell Law Directory, signifying "very high to preeminent legal ability" and "very high general ethical standards." His solid reputation is the result of his commitment to provide clients with excellent legal services and client communication on a cost-efficient basis.