A person is not a tenant if they are not on the residential lease agreement with the landlord or a party to a rental agreement. This person may be a guest of the tenant. A landlord can evict a person who is not a tenant by using the same procedures as they would for a tenant. The law regarding the amount of time necessary to evict a tenant and the paperwork needed to effect an eviction is different in each state.
Filing the Right Paperwork to End a Tenancy
When a person does not have a lease, it is presumed they are on a month-to-month rental agreement. This is true even if they are not paying rent. Typically, in California, a landlord should initiate the eviction process by providing a 30-day eviction notice. A 30-day notice does not need to state a cause for eviction.
A landlord should post a 30-day notice if the individual has been in the unit for less than a year and a 60-day notice if the person has been in the unit for a year or more. The notice must be in writing, state the full name of the guest and tenant or name the parties as co-tenants. The written notice must also specify whether it is for 30 or 60 days.
Evicting Unwanted Occupants with a 3-Day Notice
A landlord should post a 3-day notice if they have just cause to evict a person from a unit. Just cause covers failure to pay rent or breaking a term of the lease. Typically a 3-day notice is directed toward tenants, not guests. But the landlord can also include the term “and all unknown persons” in the notice. This ensures that the landlord can remove a person who is not a tenant from the unit.
A 3-day notice should state the landlord’s name, the tenant’s name, the address of the rental unit, the date and the reason for the notice.
Writ of Possession
After a landlord obtains a judgment for eviction in an unlawful detainer (eviction) case, the court may issue a writ of possession that authorizes a county sheriff to evict the occupants. The eviction typically takes place within five days after the court has issued the writ. It is advisable that a landlord have a locksmith present at the eviction, as tenants often change the locks.
The sheriff’s deputy will complete the eviction process, post the premises with an eviction restoration notice and provide the landlord with their copy of the notice. After the tenants and any guests have been removed, the sheriff’s deputy gives the landlord a receipt for possession of the premises. If the tenants or guests re-enter the premises, the landlord can call the local police department and show the officers the receipt for possession. A person who re-enters the premises after being evicted is subject to arrest.
Keeping Personal Property
After a tenant or a guest has been evicted, the landlord must keep any property left in the unit for up to 15 days. The landlord has to keep this property safe, but does not have to keep it in the same space as the unit. They can move the property to storage and charge reasonable storage costs. A landlord should keep all remaining property from the unit just to prevent threat of a lawsuit, even if that property belongs to guests rather than to tenants.
Who Is a Tenant?
A person who stays at the property for over two weeks within a six-month period could be considered a tenant, whether or not that person is making rent payments. The landlord could add this person to the lease or rental agreement. If the person pays the landlord any money for staying at the property, even if the amount is not the full rental amount, the parties have created a rental agreement, and the landlord must follow the state’s landlord-tenant laws to get the person to leave.
Tenants Allowing Move-Ins
A landlord can write restrictions into a lease or rental agreement that prevent a paying tenant from allowing a guest to move in without the landlord’s permission. Typically a lease does not deny a tenant the right to have a guest, but may limit the time a guest can spend in the unit. Most time limits are between two and three weeks.
If a tenant allows another person to move into the property without notifying the landlord, the landlord can decide whether they want to keep or evict both individuals after finding out about the move-in. The landlord can evict the original tenant for breach of the lease and evict the guest at the same time. They can also choose to have both parties stay and recognize them as co-tenants.
In most circumstances, the landlord will be able to increase the rent at this point. This is true even if the apartment is under local and state rent control. The landlord must provide notice and reason for the rent increase.
When a New Owner Evicts
The new owner of a rental unit can offer the existing tenants a new lease or rental agreement or begin eviction proceedings. A guest will be evicted along with the tenant. The new owner is required to give a tenant at least 90 days' notice before starting eviction proceedings. The exception is when a tenant is a former owner. Then a 3-day notice is required. In some cities, local eviction and rent control laws prevent a new owner from using a foreclosure proceeding to evict tenants.
Working for the Landlord
A person who works for a landlord and lives on the property without paying rent as a condition of their job is considered a tenant. If the landlord terminates the individual’s employment or the person quits, the landlord can file an eviction action in court. If the person holds over and continues staying at the property without the landlord’s authorization, they can be evicted.
Security Deposits and Roommates
A landlord must return the security deposit to the tenant after the tenant moves out. It is a good idea for the landlord to avoid giving the security deposit to a person who is not on the lease or a person who has not paid rent. If all the people in the unit signed one rental agreement and only one person moves out, the landlord does not have to return the security deposit until all the roommates have left.
When a new person joins the unit mid-term, the landlord should inquire as to whether the new person paid the deposit to another roommate. The answer to this question will determine the party to whom the landlord returns the deposit.
Evictions During the Pandemic
During the COVID-19 pandemic, California has provided protections for renters who were given eviction notices because they are unable to pay rent or other charges. The law provides relief until September 30, 2021. The protections apply to individuals who are tenants in the sense that the people in the unit are actually paying rent. The protections may not apply to individuals who are not considered tenants.
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.