Once someone starts living on your property without a written agreement, you need to be careful when asking them to leave, even though you own the property. Under the law, they are still considered tenants. You must provide them the same courtesies as those with leases, such as 24 hours notice before entering the property and performing maintenance and repairs when requested.
Evicting tenants without written leases requires a formal eviction process to prevent potential legal and financial complications.
Key Takeaways
- Tenants without a lease have the same rights under the law as regular tenants as long as they pay rent.
- Standard eviction procedures apply, including providing notice and following court processes.
- Various circumstances can lead to tenants without leases, requiring landlords to navigate specific eviction processes tailored to each situation.
Tenant Without a Lease: Common Scenarios
How does a landlord wind up with tenants and no written leases? It happens quite often.
Establishing a Month-to-Month Tenancy Through a Verbal Agreement
Allowing a friend or relative to stay in a vacant room or apartment and pay you every month is a common “verbal lease.” The parties know each other and agree to a set rent on the first or 15th of each month. That is a valid contract and lease and can be litigated in court.
In most states, these verbal leases default to month-to-month leases with a one-year term. Either party can terminate the lease upon 30 days written notice, and the “lease” terminates one year after it begins.
Purchasing a Property with an Existing Tenant and No New Lease Agreement
In such cases, the new owner inherits the tenants and their occupancy status. If no new lease is signed, the tenants may continue to occupy the property under the terms of the previous lease agreement, if one exists. However, if the lease has expired, the tenants may become month-to-month occupants by default.
Handling a Tenant Who Remains After the Lease Ends
In most states, their status automatically becomes month-to-month. If they continue to pay, they are considered “holdover tenants” and must be given a 30-day written notice if you want them to leave.
If they don’t pay, they are called “tenants at sufferance” and may typically receive a three-day notice, but you should consult an attorney if they have stayed longer than one month.
What Is a Notice to Quit?
A “Notice to Quit” informs the tenant that they must depart the property within a specified number of days. Legally, it explains the situation, tells the tenant whom they should contact, and gives the exact number of days they have until the court will be contacted. The notice must include:
- Party information: The names of all tenants, their residential addresses, and the landlord’s name and business address.
- When to vacate the property: According to your state or local laws, it must be at least 30 days from the date of the letter or longer.
- Why the tenant must leave the property: If the tenant is month-to-month and has not been on the property for a year, indicate that you will not be extending the lease for the statutory period.
- What you will do if the tenant does not leave: You must let the tenants know you will pursue legal action if they do not vacate the property.
Check with your court to ensure you have included all details to be valid. Date and sign the letter and make two copies, one for yourself and one as a backup. Send using registered or certified mail to ensure you receive a receipt.
Dealing with an Unauthorized Occupant in Your Rental Unit
If you have a remote property with no manager or one who seldom visits, tenants may share or split the property without telling you:
- Subletting: Common if you have tenants who are students, single, or travel. It may not be done deliberately, for instance, when students go home for the summer and let friends stay in the apartment to keep paying rent. However, it can result in you suddenly having an apartment full of people who never signed a lease.
- Roommates: Colleges, transient job sites like oil rigs, and low-income properties are prone to tenants with roommates. Unlike subletters, roommates often share space or crash on sofas and may never have been intended to be on the lease.
- Lodgers: People who get room and board in exchange for services. This is generally not allowed in the U.S. Still, in very few cases, such as live-in caregivers for elderly or incapacitated individuals, au pairs, or other caretakers, it may be acceptable.
Tenant Rights in No Lease Evictions
If someone has been living in a property and paying rent, they still have all the legal rights of a regular tenant. You cannot engage in “self-help” techniques such as changing the locks or cutting off the utilities.
You must still go through the entire eviction process, including giving them notice and requesting a court hearing. It might help to understand the difference between the types of people who reside on properties without leases.
Trespassers: Unlawful Occupants with Limited Rights
A trespasser is someone who has entered property unlawfully without permission. They are usually there for a brief period, often transiently, and sometimes for an illegal purpose.
Trespassing can be a crime if the person is caught quickly. If they’re not apprehended and do no harm, all the property owner can do is post a sign and raise the fence. A property holder owes no responsibility to trespassers except to notify them that the property belongs to someone else.
Guests: Temporary Residents with Some Protections
A guest is invited onto the property by someone who legally belongs there — the owner or the tenant. For example, a family member visiting for the holidays or a friend staying overnight would be considered a guest.
Guests have some of the same rights as tenants. Landlords cannot have them arrested simply for being on the property, and they can’t ask them to pay for the privilege of being there. However, they can ask them to leave after a specified period.
Tenants: Rent-Paying Occupants with Full Rights
Tenants live on the property with the landlord’s permission and pay a fee (rent) to stay and live there as if it were their own. Tenants have almost the same rights to the property as the owner.
Tenants must be evicted through court proceedings. Landlords cannot use “self-help” methods to force them out, even if they are not paying rent or are damaging the property.
How Guest Status Can Shift to Tenancy and Affect Eviction
Surprisingly, a “guest” might be a tenant before either of you realize it. According to California guidelines, for example, unless your property is a hotel, anyone who lives on the premises for more than 14 days in a six-month period or in any property for more than seven consecutive nights becomes a “tenant.”
In about half the states, laws determine when the guest becomes a tenant. Helping with chores and establishing mail delivery can be enough to turn a guest into a tenant, although in most places, the “guest” must pay some type of rent.
Other states require the lease agreement to specify when a guest becomes a tenant. If your tenancy agreement is silent, it would be up to the judge in your case. That’s why it’s important to clearly define tenancy terms in the lease so you have legal protection should you need to evict overstaying guests.
How to Evict a Tenant Without a Rental Agreement
You may need to contact an attorney for the exact method in your state. If the tenant is a guest or family member, things can get difficult because other issues are involved besides just rent.
Month-to-month or tenancy “at-will” requires 30-day notices. If you have been accepting rent up to now, you cannot stop simply because you want to evict the tenant. However, if you have a tenant whose lease has expired and they have not left yet — a “holdover” tenant or “tenant at sufferance” — your state law may differ.
Reasons for Eviction
Lawful reasons to remove a tenant include:
- Non-payment of rent.
- Unlawful activities, including drug use or sales.
- Property damage.
- Noise or nuisance.
- Health or safety violations.
- Violation of contract terms.
- Property sale or foreclosure.
If your eviction is based on discrimination, retaliation for reporting code violations or maintenance demands, or improper notice or process, it is considered unlawful and may lead to your eviction being dismissed and further legal action against you.
Step 1: Sending the Notice to Quit
With most tenants, you must provide a 30-day notice to vacate the property. You should check your court for the proper wording of the document. It must contain the exact address of the location. In situations where you do not know the names of all individuals, you may need to state “John Does 1-50” and “Jane Does 1-50” or similar language.
If the tenant vacates the property within the 30-day period, the eviction process is complete.
Step 2: Filing for an Eviction Hearing
If the tenant fails to vacate the property within the 30-day period, the next step is to file for an eviction hearing. The process will vary depending on your state and possibly your city or county. If the tenant files an answer to the notice, you may need an attorney, as there will be issues of fact that a judge will need to rule on. If the judge rules in favor of the tenant, the eviction process is terminated.
If the tenant does not answer, the judge will issue a default judgment. Depending on your state, this may be called a Summary Notice of Eviction, a Writ of Possession, or other document.
Step 3: Executing the Eviction
If the judge rules in your favor, once you have the legal document allowing you to remove the tenant, you must coordinate with the sheriff, constable, or other law enforcement in your area to have the tenant removed in an official way.
Do not attempt to physically remove the tenant yourself. In jurisdictions such as Nevada, only the sheriff or constable is allowed to carry out an eviction. Do not attempt to hurry things along. If you believe the tenants are damaging the property, call law enforcement.
Evicting an Inherited Tenant
If the tenant “came with the property,” for instance, in a sale or foreclosure, you must follow the process for removing them in those circumstances. In some states, such as Texas, tenants are allowed to remain until the end of their existing lease. You must provide 90 days’ notice that you will not be renewing the current agreement.
If no agreement for the tenant to vacate was made upon acquiring the property, the following steps are necessary:
- Serve the tenant with a written eviction notice with the appropriate waiting period.
- File for eviction with the local court if the tenant refuses to vacate.
- Prepare documentation explaining why the tenant needs to leave or why no agreement was made at the property’s acquisition.
- If the court rules in the landlord’s favor, bring the court order to local authorities to carry out the eviction.
Evicting a Squatter
Squatters are individuals who live on property for an extended period, sometimes years. The procedure for removing them is much different, known as adverse possession.
If the squatter has established residency for a statutory period, they have the right to claim title to the property. You should contact a property rights attorney immediately if you have a squatter.
Evicting an At-Will Tenant
At-will tenants generally have an oral agreement with the landlord, often on a month-to-month basis, which either party can end with a 30-day notice. If rent is not paid as agreed, a 14-day notice to quit may be given.
Landlords are not obligated to provide a reason for termination other than ending the tenancy. If the tenant doesn’t vacate within the specified timeframe, landlords can proceed with filing an eviction suit.
Evicting a Roommate
It’s not uncommon for tenants to find themselves in situations where they need to remove a roommate who no longer pays rent or creates a hostile living environment. The first step is to communicate with the roommate and attempt to negotiate a move-out timeline. If this fails, the tenant should review their lease agreement to understand their rights and obligations regarding unauthorized occupants.
After attempting to resolve the situation amicably, tenants must formally notify the roommate of the need to vacate the premises. This written notice should include a deadline for moving out and comply with state and local laws regarding lease termination and formal eviction. If the roommate refuses to leave voluntarily, the tenant may need to file an eviction lawsuit, following the procedures outlined by their state or local jurisdiction.
Conclusion
When faced with the task of evicting someone without a lease, landlords must navigate legal complexities while adhering to tenant rights. Through formal written notices and legal eviction proceedings, landlords can enforce tenant removal while protecting their rights and property interests. If you are not sure about any step in the process, always consult a legal professional.
Frequently Asked Questions
Can a live-in caregiver be evicted?
Evicting a live-in caregiver can be complex, as their legal status isn’t always clear-cut. They are only considered tenants if there’s a mutual agreement and a signed lease. Otherwise, they might be classified as lodgers, guests, or employees of the tenant, which impacts the eviction process.
As a landlord, if you face issues with a live-in caregiver, start by communicating with the tenant, who is ultimately responsible for their actions. If the problem persists, you could report the issue to the caregiver’s agency (if applicable) or, as a last resort, issue an eviction notice to the tenant. Remember to consult local tenant-landlord laws and seek legal counsel if needed.
Can you sue a tenant for damages without a lease?
A landlord can sue a tenant without a lease for damages in civil court. Keep all receipts for repairs and bring them to small claims court. Bear in mind that a tenant who cannot pay rent may not be able to pay damages.
