An estimated 30% percent of people between the ages of 23 and 65 live with roommates. No big surprise there—it's a great way to save money and stay social if you'd rather not live alone. But when it goes bad, it can be really bad. If you're hoping to kick out a terrible roommate, you should start by figuring out their legal status based on the lease agreement.
Can I legally evict my roommate?
There are several different living situations that fall under the "roommate" umbrella. One of the below scenarios probably applies to you. As you think about evicting your roommate, what you can and can't do depends completely on your lease situation:
Are you both on the lease?
Are you on the lease, and not them?
Are they on the lease, and not you?
Is there no lease at all?
You’re both on the lease
In general, you cannot evict your roommate if you are both on the lease. You are considered co-tenants and have the same rights and responsibilities. In this case, your best bet is to speak with your landlord. Assuming that eviction is the appropriate course of action, they will be the ones who need to initiate the proceedings.
Before you go this route, however, make sure that your lease doesn't mention joint and several liability. If it does, then your landlord will have to evict both you and your roommate as a unit—unless you sign a separate agreement with your landlord that disclaims joint and several liability before the eviction process begins.
You’re the only one on the lease
There are several reasons why you may be on the lease when your roommate is not. In any of these situations, you are considered the master tenant and your roommate is your subtenant. A master tenant is a tenant who has signed a lease exclusively with the landlord and allows other people to live with them in the rental unit. A subtenant is someone who lives in a rental but has no legal relationship with the landlord—they pay rent to the master tenant who is named on the lease.
If your roommate is subletting from you, you may have a written sublease agreement outlining their duties and responsibilities as a roommate. If your roommate moved in after you signed the lease, you may have a written roommate agreement or a simple, verbal agreement holding them responsible for paying their half of the rent. In either of these cases, you can evict your roommate as long as you have just cause (more on that below).
In rare cases, a master tenant can evict a subtenant without just cause. For example, if you’re a master tenant looking to evict a subtenant in San Francisco and you included a statement in your sublease agreement that "the just cause ordinance does not apply," you can evict without any reason.
They’re on the lease, but you’re not
If you are not on the lease and your roommate is—maybe you’re the one subletting, for instance—you don’t have many options. Your roommate has master tenant status, meaning the lease exists only between the landlord and your roommate, and you are their subtenant. You can’t evict them.
You can, however, speak with the landlord directly and make a case as to why your roommate is a sub-optimal tenant and why you’re a great tenant. Follow the same steps for documenting just cause for eviction as you would if you were on the lease, and then share this with the landlord.
There’s no written lease
Even if there’s no written lease agreement between you or your roommate and your landlord, you have some rights as a tenant. A lease can be verbal, although these typically create month-to-month tenancies (also known as "at-will tenancies").
Trying to evict your roommate when you are both at-will tenants will be easier if your roommate pays rent to you and you pay it directly to the landlord. In this case, you may be able to establish that you are the master tenant. Proving that you're the master tenant because you pay the rent would help your chances, but the likelihood of achieving a court-ordered eviction when neither you nor your roommate are on a written lease is still unlikely.
What's an acceptable reason for eviction, according to the law?
Although eviction procedure and laws vary by state and city, any eviction must have just cause. This means that your roommate must be doing something that the law views as an evict-able offense. In general, any serious violation of the lease terms can be cause for eviction, but the most common are:
- Unpaid rent or another general lease violation
- Engaging in criminal activity on the rental property
- Damaging the property
- Posing a threat to the safety of other tenants
Some states are very specific when it comes to defining just cause: in Alaska, you can evict someone for failing to pay the utility bill two times within a six-month period.
What kind of documentation do I need to evict?
In a standard eviction proceeding, the burden of proof is on the person doing the evicting. Unless you want to try and to talk things out with your roommate first, keep all further communication with your roommate in writing when you plan to evict.
If your roommate is doing something that’s visibly affecting your living situation, like causing damage to your apartment, take photos. The more documentation you have, the more likely you are to win an eviction case, should it go to court.
Should I ask my landlord to help?
Your landlord may have dealt with evicting a roommate before. Explain in detail what the problem is. If your roommate is endangering other tenants, the property, or is unlikely to pay rent, emphasize those points. A landlord wants to protect their property, tenants, and income.
Prepare the initial documents that would be needed for an eviction proceedings in your state, including information about the laws in your city or state that address the issue and clarify next steps, and show them to your landlord along with any evidence you have of the offenses.
The landlord isn't required to assist you with the eviction but might choose to. Here's what your landlord could do:
- If you’re both on the lease under joint and several liability, they could evict you both and then allow you to re-rent the unit with a new roommate—a complicated solution that if not handled correctly could leave you with an eviction on your rental history.
- If you are on the lease or pay the rent to your landlord, they could simply evict your roommate for you.
- If the roommate’s not on the lease, your landlord could potentially try to file trespassing charges against them, but only if they have lived in the unit a very short time.
What's the process for evicting a roommate?
To evict a roommate (aka a subletter), you'll follow the exact same steps as a landlord evicting a tenant. You'll need to start by preparing the correct eviction notices for your state, which probably include a notice to cure and a notice to vacate. Show these notices to your landlord, if possible, then deliver them to the court house nearest your rental. Next, you'll get a court date. In court, you'll appear before a judge and—hopefully—get an order demanding that the roommate leave.
How Caretaker can help
Once you start thinking about getting a replacement (and screening them so that this never happens again) we can takeover. Our plan for leaseholder was designed to take care of replacing roommates on a lease so that neither you or your landlord has to manage the process.
The information provided on this website does not, and is not intended to, constitute legal advice.
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