How to Evict a Roommate Not on the Lease

No one imagines they’ll have to force a roommate, friend, or relative to move out of their home or apartment, but sometimes it becomes necessary.

Different states have different rules in place for evicting someone who won’t leave depending on whether or not they pay rent, have a signed written agreement with you, and/or whether you own or rent the property they’re staying in.

Step 1: Determine if They’re a Guest, Roommate, or Tenant

Before we can dive into your options for removing someone from your home, it’s necessary to understand the differences between a guest, a roommate, and a tenant/subtenant, since many states have different removal requirements for the different types of living arrangements.

Roommate

Typically, a roommate is someone who shares living expenses, such as rent and utilities, with you. Roommates are often named on your rental agreement/lease as co-tenants if you’re a renter, but not always.

If the roommate pays rent directly to you, then they may actually be viewed as a tenant or subtenant, even if there’s no formal agreement calling them a “tenant.”

Guest

A guest is someone invited by a tenant or owner to stay for a short period of time. A guest is not typically expected to pay rent or share in utilities or other living expenses.

If a guest refuses to leave, it may be more difficult to get them to move out, depending on which state you live in.

Over time, if your guest begins paying rent to you in order to remain on the property, they might be thought of as 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.

In those states, you can follow the same eviction process 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.

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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 is someone who formally rents living space from a tenant who’s already renting the unit from someone else.

Often, there’s a written agreement between the tenant and their subtenant specifying the rent amount, what part(s) of the rental unit the subtenant can have access to, and how long the subtenant will be renting from the tenant, but not always.

In most states, removing a subtenant follows the same eviction process as removing a tenant would. 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.

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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).

NOTES

Victims of Domestic Violence/Abuse. Nearly every state has protections in place to help victims of domestic violence/abuse permanently remove the abuser from your home/apartment. Check the specific laws in your state to determine what you need to do in order to have someone removed in this situation.

If you own the property, or have a mortgage (not a rental agreement/lease), skip to step 3 to learn what to do to remove that pesky unwanted occupant from your property. (In many states, the same steps also apply to squatters.)

Step 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/lease 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 the landlord didn’t give you permission to have others stay with you, then your landlord can legally evict them. (And might just evict you, too, if your lease prohibits unauthorized guests/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.

Don’t be afraid to speak up and let your landlord know what’s going on, even if you violated the lease by allowing someone else to stay with you.

Step 3: Contact Law Enforcement / Deliver an Eviction Notice

Depending on the state you live in, 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 happen to live in a law-enforcement evictions state, then 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’ll be required to file some type of court case to get the party removed.

As a first step in those states, you’ll most 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 fact that if the person doesn’t move out within a certain time frame (as determined by your state’s laws) you’ll file a court case to remove them from the property
  • 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 make sure 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.

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Step 4: File the Eviction Action

There are several types of court cases to remove someone from your property (whether you rent it or own it) depending on the state. They can be called:

  • Unlawful or Wrongful Detainer cases
  • Eviction or Summary Possession cases
  • Forcible entry and/or detainer cases
  • Writ of Possession Actions
  • Trespass cases

Case Types

It’s important to get this right, since some case types can only be filed if there’s never been a landlord/tenant relationship, and 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 / 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.

There may or may not be a landlord/tenant relationship in these cases, depending on the state.

Forcible Entry and/or Detainer

Forcible entry or forcible detainer cases are often defined as someone entering the rental unit either peacefully or forcefully who now refuses to leave.

However, to count as “forcible,” the unwanted occupant must use force to remove the rightful occupant/owner from the property, OR they must threaten to use force against the rightful occupant/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’s no landlord/tenant relationship AND there’s no domestic abuse case between you and the other party.

Trespass

These cases can typically only be filed when there’s no established landlord/tenant relationship.

They’re also the only case type on this list that’s criminal (not civil), and as a result, the person could also face jail time in addition to being removed from the property.

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

This means filling out paperwork explaining why you want to remove the occupant from your property/rental unit. Many states will also want you to provide the court with a copy of the eviction notice.

Once you’ve given all the required paperwork to the court, you’ll typically be assigned a case number, which will allow 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.

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Step 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. But how this is accomplished varies by state. In some states, the landlord (or 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 they’re 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, making sure to properly serve them this time around.

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If you believe the court made an error in reaching their decision, you (or the landlord, if renting) could file an appeal, explained in step 6 below.

Step 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 a 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:

  1. Determine if the person’s a guest, roommate, or tenant.
  2. Talk to the landlord (if you’re a renter).
  3. Contact law enforcement /deliver an eviction notice (if required).
  4. File an eviction case with the appropriate court (if required).
  5. Attend the eviction hearing (if a hearing is required).
  6. 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