It may seem that it would be easy to get rid of a bad roommate, and it can be if they leave when asked. But if they refuse, the prospect of an eviction looms. The eviction procedure can be complicated. It varies from state to state, but, in most cases, a renter's right to evict a roommate depends on whether the person has a separate lease or rental agreement directly with the landlord or is subletting from the master tenant. Before jumping into an eviction, it's important to get an overview of roommate eviction laws and check the legal procedures in the jurisdiction where the rental is located.
Co-Tenants and Their Rights
The advantages of living with roommates cannot be denied. First, and perhaps most important, is the fact that it is much easier to make ends meet when you divide monthly rental payments with one or more others. This is especially true in expensive urban areas where rents have skyrocketed in recent years. But that's not the only advantage. Having compatible roommates creates a small community in a household, where there is always someone to listen to the happenings of the day and offer a ride to the airport.
But living with an incompatible or irresponsible roommate can be a nightmare. This may include a roommate who doesn't make their rent payments in a timely fashion or, in worst case scenarios, doesn't pay at all. It can also include roommates who refuse to follow the lease terms, bringing a pet into a no-pet apartment or smoking in a no-smoking unit. Then there are just roommates who have habits that irritate others living there, like those who don't clean up their dishes, listen to loud music in the wee hours, or invite others to stay over frequently.
Legal Options for Getting a Bad Roommate Out
Although having a bad roommate can be upsetting and difficult, getting rid of that person may be even worse. Obviously, the process begins informally with a chat over the kitchen table outlining the issues and asking the roommate to find another dwelling place. If they agree and vacate at the end of the month, it's time to look for a new roommate and try to be more careful in the selection. If they refuse to leave, the process is more challenging and it may not be possible if the landlord is not on board.
Most tenants and co-tenants get their legal rights to occupy the dwelling unit via a rental contract or lease. The contract can be with the established master tenant, in which case they are legally considered to be subtenants, rather than co-tenants. In this case, the master tenant can start the eviction process.
It is also possible that the bad roommate is not on any contract and was brought in without notice to the landlord. This is often the case with a family member or significant other who moved in under the radar. In this case, either the landlord or the master tenant may need to act to evict them.
But the roommate can also enter into a rental contract directly with the landlord. Sometimes landlords actually choose co-tenants for units with multiple bedrooms. But it can also be the case that the original roommate moves out, the remaining roommate advertises for a replacement, and the landlord prepares a lease for them to sign. In this case, the only person who can evict the bad roommate is the landlord, and they may be reluctant to do so absent serious legal breaches of the tenancy agreement.
Written Notice of Termination of Tenancy
In many cases, a roommate eviction should start with a notice of termination of tenancy. While this isn't legally required in some states, it's always a good idea. The master tenant can prepare this notice even if the bad roommate has not signed a lease or rental contract with the person. The form for notice of termination varies among the states, so it's a good idea to check local laws with the local court or a rent control office to determine if precise wording or a preprinted form is required. Generally, it is not.
Essentially, the notice of termination must state the name of the bad roommate, the day their tenancy began and the type of tenancy, such as "at will," or month-to-month, or term, as in a one-year lease. The notice should identify the person terminating the tenancy and the reasons for termination. Most importantly, it should state that the current living arrangement is ending on a specific date by which time the roommate and their personal property must vacate the rental.
The notice period for termination is a matter of state law and, even if the roommate isn't an official tenant, the notice should give the person the same amount of time as is required to end a month-to-month tenancy. In many states this is 30 days' notice. Hand the roommate a copy of this notice and mail the notice via certified mail for proof of receipt.
Reasons for Termination of a Roommate Situation
While it may seem that a bad roommate can be kicked out without notice for any reason, it is important to check the particular laws and rules in the jurisdiction where the property is located. Neither the landlord nor the master tenant can evict an unwanted roommate simply for irritating behavior if there are strict laws limiting tenancy termination to a breach of the rental agreement, for example.
On the other hand, the most common reasons for eviction are failure to pay rent and violation of lease terms, like keeping a pet in a no-pet unit. In such cases, it is appropriate to terminate the tenancy in any state. While checking for rules on evictions, see if there is a hold on evictions in the area. For example, during the coronavirus pandemic, many cities and states prohibited evictions for failure to pay rent if that failure was due to financial issues resulting from the pandemic.
The matter is especially complex if the roommate was brought in "under the table" without a rental contract or lease. In that case, there are no written contract terms about why and how a tenancy can be ended and nothing in writing about termination and eviction rules and procedures. In a rent-controlled jurisdiction, "just cause" is often required to evict a tenant, which means there must be a good and legally sound reason to evict.
Moving Toward Eviction
If the bad roommate moves out in response to the termination letter, the challenge is over. If they agree to move, but ask for reduced rent or other compromises, it is a good idea to negotiate, since eviction will take time and cost money. If they simply refuse to budge, either the landlord or the master tenant will need to head to court.
Whether or not the lease contract is with the landlord, it is a good idea to advise the landlord about the situation. This can be tricky if the roommate was brought in by the master tenant without notice to the landlord because, if having a subtenant or roommate violates the terms of the lease, the landlord may evict all tenants from the unit. That is why it pays to work with the landlord and keep them in the loop.
Legal Notice of Eviction
Different states have different hoops for a master tenant or landlord to jump through before heading to court. Most include an official document advising the roommate to remedy the breach or move out within a particular period of time. Again, it is important to check with the local court to determine the rules in the jurisdiction.
For example, in California, when rent is not paid, a landlord files a Three-Day Notice to Pay Rent or Quit. Under this notice, the roommate must cough up all rent in arrears within three days of the notice being served on them or, in the alternative, leave the premises. The notice period varies from jurisdiction to jurisdiction and for different types of breaches.
If the bad roommate complies with the notice and pays rent or remedies the breach of agreement terms, all is well. If they move out instead, the problem is solved. If they don't do either, it is time to file an eviction action.
Eviction or Unlawful Detainer Action
Once the time period of the eviction notice passes, the master tenant or the landlord can file an action in court. In some states, like California, this is not called an eviction action but an action for unlawful detainer. The court in California has an expedited schedule to hear cases for unpaid rent, while other unlawful detainer cases may take a month or more to get to hearing. The court filing will set out the names of the parties, the date the tenant entered the premises and the facts leading to the eviction.
The bad roommate has a chance to answer the complaint and set out their own version of the facts. Both parties have the chance to conduct an investigation, called "discovery," where they ask the other side questions they must answer, or ask for copies of documents they hold that can be evidence in the case. Discovery also includes requests to admit certain facts. For example, a master tenant might ask the roommate to admit that their rent is not current, or that they haven't paid rent for six months.
Wrongful Detainer/Eviction Hearing
The court sets a rapid hearing date for the unlawful detainer case, but this may be delayed if the roommate requests additional time to prepare. When the hearing occurs, it is best to be represented by an attorney, although this is likely to raise the cost of the eviction considerably.
The court allows the landlord or the master tenant, whichever one is bringing the case, to proceed first by putting on evidence and calling witnesses. Then the roommate presents their evidence and states their position. The court rules either immediately or takes the matter under advisement and rules on the issues later, sending the parties the decision by mail.
If the court rules in favor of the landlord or master tenant, the roommate can be evicted. This is not a self-help matter, however. Generally the winning party must get a warrant authorizing law enforcement to come and escort the roommate from the premises.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.