While the law varies in each state, evicting a roommate not on the lease might be as easy as calling law enforcement. In many states, you’ll have to go through the courts before the unwanted roommate can be removed from the house.
6 Steps to Evict a Roommate Not on the Lease
Here’s how to get someone who shouldn’t be in the rental unit out of the house:
- Determine if the person’s a guest, roommate or tenant.
- Talk to the landlord (if you’re a renter).
- Contact law enforcement or deliver an eviction notice (if required).
- File an eviction case with the appropriate court (if required).
- Attend the eviction hearing (if a hearing is required).
- Appeal the ruling if the court doesn’t evict the party.
1. Determine if They’re a Guest, Roommate, or Tenant
Evicting a person not on the lease differs based on their status.
Roommate
Typically, a roommate is someone who shares living expenses with you. Roommates are often named as a co-tenant on your rental agreement, but not always.
If the roommate pays rent directly to you, they may actually be viewed as a tenant or subtenant, even if there’s no formal agreement in place.
Guest
A guest is invited by a tenant or owner to stay for a short time. Guests are not typically expected to pay rent or share in utilities or other living expenses.
Depending on your state, it may be more difficult to get a guest to move out if they refuse to leave.
Over time, if your guest begins paying you rent to remain on the property, they might be considered your tenant or subtenant, even if there’s no written agreement between you.
Tenant-at-Will
In some states, if a person lives with you but doesn’t pay rent and doesn’t have a set date on which they must move out or pay rent, they could be considered a tenant-at-will.
You can follow the same eviction process in those states as removing a tenant from a rental unit.
For example, in Nevada, guests are tenants-at-will and must be given a 5-day notice to leave the property and then a second 5-Day Notice to Quit for Unlawful Detainer prior to filing an unlawful detainer case in court.
In Virginia, no lease, no rent payments, and no move-out deadline makes the person a tenant-at-sufferance, and they can be kicked off the property without going to court or involving law enforcement.
Subtenant
Typically, a subtenant formally rents living space from a tenant who’s already renting the unit from the landlord.
Often, there’s a written agreement between the tenant and their subtenant specifying the rent amount, what part of the rental unit the subtenant can access, and how long the subtenant will be renting from the tenant.
In most states, removing a subtenant follows the same eviction process as removing a tenant. Because of this, subtenants and tenants are the easiest types of people to remove from your property since there’s a clear-cut process to follow in nearly every state.
However, as noted above, sometimes just the act of paying rent to you makes the person your subtenant (or your tenant if you own the property they’re living in).
Nearly every state has protections in place to help victims of domestic violence or abuse permanently remove the abuser from the home or apartment. Check the specific laws in your state to determine what you need to do in order to have someone removed in this situation.
2. Speak with Your Landlord (If Renting)
If you’re renting, and your roommate, guest, family member, or anyone who’s not on the lease will not leave, talk to your landlord.
If your roommate is named on a rental agreement with you, talk to your landlord about why you feel they should move out. If the landlord agrees, they can file an eviction action against your roommate.
In many states, if the landlord wasn’t aware that you had someone staying with you or didn’t give you permission to have others stay with you, then your landlord can legally evict them. However, they might also be able to evict you if your lease prohibits unauthorized guests or roommates.)
In other states, even if the landlord was aware that others were staying with you, they may still have to be the one to file the eviction action with the court.
3. Contact Law Enforcement or Deliver an Eviction Notice
Depending on your state, you may need to go through the courts to remove an unwanted occupant from the property. Other states allow you to go directly to law enforcement to have the person removed from the property without opening a court case.
Contacting Law Enforcement
If you live in a state that doesn’t require you to go through the courts to remove someone who’s overstayed their welcome, like Arizona, consider yourself lucky. You simply need to contact law enforcement officials, and they’ll take care of the rest.
Officers will remove the person from the property for you. However, some states require officers to allow the party to offer some form of proof that they have the right to remain on the property. It’s up to the officer to determine whether it’s acceptable or not.
If you live in a law-enforcement eviction state, you’re done! You don’t have to do anything else to get the person removed from your property.
Delivering an Eviction Notice
If you don’t live in a state that allows law enforcement evictions in these situations, you (or more likely your landlord) will need to file some type of court case to get the party removed.
As a first step in those states, you’ll likely be required to give the person a written eviction notice before filing the court case.
In Tennessee, for example, “unauthorized” persons must be given a 3-Day Notice to Quit. However, a few states, like Indiana, don’t require prior written notice in these cases.
An eviction notice (if required) should contain the following information:
- The reason for the eviction
- The time frame to move out
- Any other sentences required by state law to be on the notice (for example, “You have the right to contest this eviction in court.”)
You’ll also need to ensure that you’ve properly delivered it to the person you want to remove, or your court case could be dismissed.
Some of the most commonly allowed delivery methods include:
- Hand-delivering a copy of the notice to the unwanted occupant
- Posting a copy of the notice in a conspicuous place at the property
- Leaving a copy of the notice with a family member, another occupant, or a co-worker
- Mailing a copy of the notice
These methods vary slightly from state to state, so it’s necessary to ensure that you’ve delivered the notice in the correct way.
Once the notice has been properly formatted and delivered, you can file an eviction case with the court.
4. File the Eviction Action
There are several types of court cases in which you can remove someone from your property (whether you rent it or own it) depending on the state. They can be called:
- Forcible Entry or Detainer cases
- Eviction or Summary Possession cases
- Writ of Possession Actions
- Unlawful or Wrongful Detainer cases
- Trespass cases
Case Types
Getting this right is important since some case types can only be filed if there’s never been a landlord-tenant relationship. Others can only be filed if there has been a landlord-tenant relationship. If you file the wrong case type for your circumstances, it could be dismissed.
Unlawful Detainer, Wrongful Detainer, Eviction, or Summary Possession Actions
These are typically the cases that come to mind when you think of the word “eviction,” and many states use the same process for removing unwanted occupants as they do for removing tenants of a rental unit.
Forcible Entry or Detainer
Forcible entry or forcible detainer cases are often defined as someone entering the rental unit either peacefully or forcefully but now refusing to leave.
However, to count as “forcible,” the unwanted occupant must use force to remove the rightful occupant from the property, or they must threaten to use force against the rightful occupant or owner in order to remain on the property.
There is typically no landlord-tenant relationship in these cases.
Writ of Possession Actions
In New Jersey, a Writ of Possession Action can be filed only if there is no landlord-tenant relationship and no domestic abuse case between you and the other party.
Trespass
Trespassing cases can typically only be filed when there’s no established landlord-tenant relationship. This type of case is also criminal in nature, meaning that jail time is a possibility for the person being removed.
In both Oklahoma and Kansas, for instance, landlords can pursue trespass actions against a tenant’s roommate, guest, family member, or other occupant who is not on the lease.
File Court Documents
Now, you’ll file paperwork with the court explaining why you want to remove the occupant from the rental unit. Many states will also want you to provide the court with a copy of the eviction notice.
Once you’ve submitted all the required paperwork to the court, you’ll typically be assigned a case number. This number allows you to check in with the court on the status of your case and ask any questions during the court process.
Serve a Complaint and Summons on the Occupant
Depending on the state, you may be required to serve a copy of the eviction complaint and a summons to attend the hearing on the person you want to remove.
You’ll typically be given a deadline to do this by, and if you fail to ensure the party has received a copy of the summons and complaint within that deadline, your case could be dismissed.
5. Attend the Hearing
In those states that require a court hearing to remove the unwanted party, the person who filed the court case is required to attend the hearing, or the case will be dismissed.
If your landlord filed the court case, the landlord will be required to attend the hearing. It’s still a good idea for you to show up, even if you’re not required to attend, because you could be called as a witness or have additional evidence to offer the court.
If the Court Rules in Your Favor
If the court rules in your favor, then the unwanted occupant must leave the property. In some states, the landlord (or the person who filed the court case) receives the eviction order and can remove the unwanted party themselves.
In other states, law enforcement officials receive a copy of the eviction notice and are responsible for removing the person and their belongings from the property.
If the Court Doesn’t Rule in Your Favor
It’s possible that the court will rule that the unwanted occupant doesn’t have to move out. In that case, depending on the reason for the ruling, you or your landlord (if renting) may be able to file a new court case.
For example, if you didn’t properly serve the party with the eviction notice or summons and complaint, you could file a new case and serve them correctly this time.
If you believe the court erred in reaching its decision, you (or the landlord) could file an appeal.
6. File an Appeal
Finally, if the judicial officer issues a ruling stating that the unwanted occupant doesn’t have to move out of the property, you (or the landlord, if you’re renting) could file an appeal.
This means filing a notice of appeal as soon as possible after the original court makes its ruling. Most states have an appeal deadline, giving anywhere from a few days to about a month after the ruling is issued to file an appeal.
Note that in most states, a ruling in an eviction case can only be overturned if the lower court made a legal mistake in arriving at its judgment, like not allowing witnesses when the law requires it, and has nothing to do with whether you (or your landlord) liked the outcome of the case or not.
Appeals can take a few weeks to a few months, and may require additional filing fees, depending on the state.
Evicting Someone Not on the Lease
Below is a summary of how to remove someone who’s not on the lease:
- Determine if the person’s a guest, roommate, or tenant.
- Talk to the landlord (if you’re a renter).
- Contact law enforcement or deliver an eviction notice (if required).
- File an eviction case with the appropriate court (if required).
- Attend the eviction hearing (if a hearing is required).
- File an appeal if the court doesn’t evict the party.
In the best of circumstances, you would never have to remove a friend, guest, roommate, or family member (or anyone else who’s not on a lease with you) from your property. However, if that does need to happen, make sure you understand the legal requirements in your state
