Evicting a family member might be impossible under the law or it might look just like a stranger eviction, depending on the circumstances. It's important for the homeowner or landlord to understand eviction rules before proceeding.
Evicting a Minor Family Member
Unruly or deadbeat tenants come in many configurations which can include a family member. Obviously, there are other considerations when deciding whether to evict a relative.
If the unruly tenant is under the age of majority, a parent cannot evict the child unless she has been legally emancipated (e.g. marries, joins the military or gets a court order of emancipation). In that case, the minor is treated like an adult.
Evicting an Adult Relative
One property co-owner cannot evict another co-owner, whether the two are related or not. However, if the family member is an adult and doesn't own a share of the home, the homeowner can evict the family member just like any tenant.
Since state landlord/tenant laws differ and some cities have rent control laws, there is no uniform answer regarding the eviction process. It depends on the situation and the laws: If the person is a house guest who simply refuses to leave, the homeowner may be allowed to put her and her things on the sidewalk in some states.
But if the family member/tenant has paid rent for a room or a separate dwelling or even stayed for free for a length of time, eviction laws usually come into play. The homeowner needs to get an overview of the process, then do research on his particular jurisdiction's laws. Note that if the person being evicted owns part of the property, legal eviction is usually not possible.
Overview of Eviction Laws
Eviction is the legal term for having a tenant or occupant removed from a dwelling. The actual eviction process terminates in a sheriff escorting the person from the premises, although many evictions terminate by negotiation.
Evicting a family member who is a paying tenant in a separate unit is the same as evicting any tenant and regular eviction procedures apply. While the specifics of those procedures differ among jurisdictions, the basic steps are the same: notice, lawsuit, then eviction by the sheriff.
Conditional Eviction Notice
If the landlord is evicting a family member for unpaid rent or a breach of a term in a lease agreement, the notice period in most jurisdictions is shorter and serves as a window of time to pay up or get back in compliance with the agreement. In California, for example, a tenant who doesn't pay rent is served with a 3-Day Notice to Pay Rent or Quit. If the tenant pays the back rent within that period, that is the end of the matter.
Similarly, a family member/tenant being evicted for breaching a term of the lease agreement must often be given a short, conditional notice. The tenant must get back in compliance with the agreement or leave the premises.
Read More: How Long Do You Have to Move After an Eviction Notice?
Unconditional Eviction Notice
In many states, a property owner can evict a tenant without cause, that is, even if the tenant has done nothing wrong. Even in states or municipalities that only allow evictions for "cause," a homeowner can usually evict someone renting a room in her own home without cause.
In this case, longer notice is usually required. It may be a 30-day notice, 60-day notice or a different time period. The homeowner or landlord must find out the timing required in her jurisdiction, then serve the family member/tenant with written notice telling the person to leave within that period of time.
Going to Court
If the family member/tenant doesn't leave within the time specified in the eviction notice, the homeowner/landlord must file a court action asking for a court order that the person is breaking the law by continuing to live in the premises.
If the family member/tenant files a response in court, the matter continues as litigation, with discovery and a trial. Once the court enters a judgment, the homeowner/landlord gets a warrant authorizing the sheriff to perform the eviction and have the locks changed.
- Research the eviction laws in your county. These vary from county to county, so it's important to know what your legal rights are in your local community. Your county or state's official website should have this information. Another option is to ask your county clerk.
- Contact an attorney who specializes in landlord and tenant law in your community if you need further assistance.
- Document everything. Keep detailed notes, keeping to facts only and avoiding personal issues. Take pictures of any damage or physical proof that you can. If your relative challenges the eviction or there is any other reason that you must attend court, factual proof of your claims will help the judge make an informed decision.
- Inform the police and courts immediately if you fear for your life or the safety of your other family members. If the relative you are trying to evict has given any inclination or threat that he will harm you, your home or other occupants, make that known right away. File for a temporary restraining order or protective order against that family member.
- Avoid making biased or false accusations. Doing so may cause the judge to rule against you, possibly even ordering you to pay fines and penalties.
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.