Subletting is usually a great way to find a roommate to cover some of the rent, cover all of your rent while you're gone or get out of your lease. But sometimes it goes wrong—and if so, you'll need to understand how the eviction process works. Assuming your subtenant has a sublease that you both signed, the process to evict them is the same as evicting a regular tenant. Although the laws vary state by state, there are a general guidelines that anyone renting out space should be aware of:
- Subletters always need just cause to evict
- The legal eviction process applies to subletters
- Make sure your subtenant can't claim squatters' rights
We suggest you share these steps with your landlord since you will likely need to involve them in the process.
Can I evict a subtenant for any reason?
No, you must have a valid reason for eviction. In most states, you have the right to evict someone for failing to pay rent in a timely manner. In some cases, you can also evict a tenant for violating terms of the rental agreement, causing damage to the property, threatening or hurting other tenants and residents, or committing crimes on the property.
On the other hand, it's illegal across the board to evict someone for any reason that would be deemed discriminatory under federal or local fair housing laws. You also cannot evict someone as a form of retaliation, or because you just don't like them.
Do I have to go through the formal eviction process for my state?
You have to go through the same process to evict a subtenant as a landlord would to evict a regular tenant—as long as your subtenant has a written lease agreement with a specified end date. (If they don't, you most likely have a month-to-month agreement and you can terminate their lease with a certain amount of advance notice, rather than going through the eviction process.) Although each state has slightly different legal guidelines for eviction, all follow the same general model:
1. Serve written notice
You must always begin the eviction process by serving written notice to your tenant. Some states demand that notice be delivered in person, or by certified mail with return receipt requested. Be sure to follow local laws and keep a record of all communication with your tenant during the process.
The amount of notice you are required to give will depend on state law and the reason for eviction, but you can expect to draft a Notice to Cure or Remedy and a Notice to Vacate.
If you are the primary tenant and you are evicting a subtenant or roommate, then you can prepare these notices and show them to your landlord before sending them. The landlord isn't required to assist you with the eviction but might choose to.
2. Try talking them into leaving.
After you’ve served written notice your next step will be to register the eviction proceedings with the local housing court, and this is what puts record of eviction on a renter’s rental history report. An eviction on their record will make it very hard to get a lease in the future, which is why this is a good opportunity to discuss the situation with them and ask them to leave of their own accord.
3. File papers with the court
If they refuse to leave then you will need to continue with the legal eviction proceeding, following the specific guidelines for your state. Generally, once you have served notice, you will need to go to the court and file your paperwork. In most states, you are required to do this at the closest courthouse to the rental property.
You will have to pay court and filing fees, which will likely be paid for by the tenant, assuming the judge rules in your favor. If you have filed the papers correctly, your tenant will be given copies of the paperwork. They may have the opportunity to respond in writing, or a court date may simply be chosen.
3. Go to court
An eviction proceeding almost always takes place before a judge, with no jury present. You will need to bring with you all proof and documentation showing that the eviction is valid to encourage the judge to rule in your favor.
Your tenant may argue that you did not follow the proper steps to evict you, that you are attempting to evict them as a form of discrimination or retaliation, or that you did not provide them with a habitable living space. Be prepared to defend yourself in these cases.
4. After the ruling
If the court rules in your favor, a court order will be issued demanding that the tenant vacate the premises. Most state laws very clearly state that this action must be carried out by a law enforcement officer.
It is generally true that anything you do to encourage the tenant to leave—changing the locks, shutting off utilities, etc.—is illegal and can invalidate the eviction, putting you back to square one.
If the tenant leaves behind any belongings, most states have specific timeframes that you must wait before selling or disposing of the items, so check your local laws. Select your state from the dropdown menu to learn more.
What about squatting?
Adverse possession—more commonly known as squatter’s rights—is the legal acquisition of someone else’s property through extended inhabitation, or ‘squatting’ on the property. Every state has a different length of time that a person must remain in a unit to gain ownership of it.
Squatter’s rights are hard to achieve. In general, the person attempting to squat must live on the property in an obvious, known way that prevents anyone else from using it for an extended, uninterrupted period of time. In most states, that period of time is multiple years.
We've gathered some more resources that we suggest you take a look at. Many of these are customized for your local jurisdiction, so make sure to choose your state from the dropdown menu on this page.
The information provided on this website does not, and is not intended to, constitute legal advice.