Evicting a roommate, subtenant or family member can be a tricky situation. In certain situations, you are not allowed to evict; the rest require you to go through a complete legal process of eviction. You may not evict anyone who is listed on the lease with you, unless a clause in the lease allows it. For example, a lease has lessees and occupant designations. In this case, a lease clause allows the lease holder to remove occupants from the home.
Someone living with you who does not have an agreement with you, an oral agreement, or a subtenant agreement, is subject to eviction. Those cases put the person under you as a tenant, and you are the landlord. If your lease does not allow subtenants or additional individuals living in the home, you could face eviction action as well.
Decide if you have a valid eviction reason. Most states only allow evictions based on a handful of criteria. Non-payment of rent is the typical reason. A tenant can be evicted at the end of a lease term. If the subtenant doesn't have a rental agreement with you, most states consider him in a month-to-month lease. Violating a clause of the lease is the last eviction reason.
Write a Notice to Vacate and serve it to the subtenant. This notice provides the reason for eviction, any action required to reinstate the tenancy, and the date to move out. The state's Landlord and Tenant Act provides the specific length of time needed, which varies with the eviction reason.
File the eviction complaint in court. The court that handles the eviction complaint is a civil court, and must be the court that has jurisdiction over the location the home is in. A court clerk cannot provide you with legal advice, but he will give you all paperwork that the court needs filed to start the eviction proceedings. You usually have to fill out a complaint form and a summons form.
Serve the roommate with the summons. Proper service requires a private process server, sheriff, or adult with no interest in the proceedings to deliver the hearing notice. Hand delivery is the preferred method of service, but most courts allow posting the notice and sending it certified mail if that fails. Consult the state and court's service requirements so that the case doesn't get dismissed due to improper service.
Bring copies of all evidence with you to the hearing. Eviction evidence includes copies of rental agreements, rent receipts, proof of lease violation and copies of the written Notice to Vacate. You get a default judgment if the subtenant doesn't show up. Present your side of the case if the renter does arrive. Most eviction hearings are concluded in one hearing. Listen to the judgment, and receive a copy of the eviction order and any money judgment you win.
File a Writ of Execution or Writ of Possession if the roommate continues to stay in the home. A judge grants the Writ. Deliver it to the sheriff and accompany him when the Writ is executed. The sheriff evicts the subtenant from the home, and takes personal property to put into storage. You may change the locks at this time, but not before the Writ is executed.
Eviction is a complicated procedure, and cases can be dismissed for improper service or filing. Get a lawyer if you feel the person living with you is going to fight the eviction.
Tips and warnings
- Eviction is a complicated procedure, and cases can be dismissed for improper service or filing. Get a lawyer if you feel the person living with you is going to fight the eviction.