Evicting a partner from a shared home is never a happy situation. This is particularly true if the parties are registered domestic partners. The emotional issues can be complex, but the legal issues may be even more complicated. When a couple breaks up, it is awkward to be sharing a home, and getting the other person to move out seems like a perfect solution. But if they decline to leave, it can be difficult to force them out, especially if they haven't done anything wrong and have not violated the rental agreement.
The steps to take to evict someone – even the question of whether eviction is possible – depend on the circumstances. Anyone seeking to evict a partner from a shared dwelling without cause should check the landlord-tenant laws on eviction in their area. This will help them determine if a tenancy termination without cause is permitted.
Evicting Someone Sharing a House
Eviction is a legal procedure that requires court action. It is sometimes portrayed on television as a quick, self-help affair where a landlord throws a tenant's belongings into the street as a brawny locksmith changes the door locks. But this type of self-help is illegal in all states.
Instead, the landlord must give the tenant proper notice terminating the lease or rental agreement and advising them of the period of time they have to vacate the premises. If they do not comply with the eviction notice, the landlord can file an action for eviction (sometimes called wrongful detainer) in state court. If the tenant still doesn't leave after an eviction judgment against them, the landlord can ask law enforcement to assist in physically removing them.
On the other hand, state laws about eviction are not uniform. No two states have identical landlord and tenant laws and, even within some states, they vary from city to city. Some states permit termination of a tenancy for any reason or no reason. Others, especially those jurisdictions with rent control laws, allow evictions only "for cause," including failure to pay rent, damaging the unit or breaking other terms of the tenancy agreement. Most evictions cite nonpayment of rent as the cause.
Who Owns the House?
Another early question in this type of situation is: Who owns the house? Who stands in the role of the "landlord" in this scenario? An eviction is only possible if one of the cohabiting partners has greater rights to occupy the dwelling than the other. If one owns the house, they are more likely to be considered the landlord with eviction rights over a guest or tenant.
That, however, also depends on circumstances. It may not be the case if the couple are registered domestic partners and live in a state with community property laws that apply to domestic partners, like California. Under community property laws, all money earned during a marriage by either spouse/domestic partner belongs equally to both. That means that if one partner bought a home with money they earned during the partnership, it would likely belong to both parties, no matter who is on the deed. In this type of situation, it is best to seek the advice of an attorney familiar with landlord-tenant law.
Questions to Ask Before Evicting a Domestic Partner
There are many questions to ask before attempting to evict a domestic partner without cause from a home in one partner's name, including:
- Are the two partners registered domestic partners?
- Does the state have community property laws?
- Do those laws apply to domestic partnerships?
- Did the owner/partner buy the dwelling after entering into an official domestic partner relationship?
- Did they use in whole or in part money earned during the domestic partnership?
If the unit was purchased by the two partners together, and both names are on the deed, it will be necessary to get legal assistance. Neither party has the right to evict the other without cause. The lawsuit to consider in this case is one to force a sale of the property, not one to get the partner removed from the dwelling.
Who Rented the Dwelling?
If neither partner owns the dwelling in which they are residing, it's likely that they are renters. One tenant will have eviction rights in this situation only if that partner rented the unit on their own and then, later, allowed the other partner to move in with them. In that case, the renting tenant is the master tenant, and the partner is a subtenant or guest.
In many states, the master tenant has the right to evict a subtenant or guest without bringing the actual property owner into the situation. However, in other states the owner of the property must be involved. Familiarity with local landlord-tenant laws is critical.
Partners Jointly Renting a Home
If the two partners jointly rented the home or apartment, they are in the same situation as if they purchased it together. Neither has more rights than the other; neither stands in the "landlord" role. If one tenant was disrupting the building, damaging the property or otherwise breaking the lease terms, the landlord might opt to evict them, but it is also possible that they would evict all the tenants, not just one. It is unlikely that the landlord would evict one tenant just because the other tenant wishes them to do so.
Note that if the partner that the individual wants to evict is actually the master tenant, it is not possible to take any action to remove that partner from the premises. The partner who is the master tenant has greater rights to occupy the rental property than the one seeking to evict.
Tenant or Guest?
If one partner is the property owner or master tenant and the other partner chips in to live there, they are considered a tenant. This is true even if they do not officially pay rent, but contribute toward utilities or other household expenses. If they do not pay anything toward rent or utilities, they are a guest. Different laws and procedures apply in these circumstances.
In a jurisdiction where termination of tenancy without cause is legal, the landlord-partner must give the tenant-partner required notice that they are terminating the tenancy. For a month-to-month tenancy, 30-days' written notice is required in most states, but it's important to check local notice requirements. In some jurisdictions, that period is doubled if the person has been residing there for a year or more. Often forms are available from the court to terminate a tenancy. Check the court's website.
If the partner to be evicted is a guest, a different type of notice or no notice at all may be required. Laws on evicting guests vary widely from state to state. In some states, they can be summarily excluded from the rental unit as a trespasser.
Proceeding With the Eviction Process
If, after considering all of the circumstances, an individual determines that they do have the right in their jurisdiction to evict their partner without cause from the residence they share, they must act according to the applicable landlord-tenant laws. Generally, once written notice is given terminating the tenancy, no further action can be taken until that time period has passed. For example, if the partner is given a written 30-day notice terminating the tenancy, no other action can be taken for the entire 30-day period. If they move out during the period, the problem is solved, and no further action is required.
If the time period given in the notice passes, but the partner does not vacate, it is time to go to court. An eviction action can be filed against that partner. This is essentially a complaint filed in court charging the partner with unlawfully staying in a dwelling. The homeowner partner prepares the proper paperwork and takes it to the court clerk to file. There is usually a filing fee that must be paid as well. The court clerk prepares a summons with the name and address of the court. This document requires that the partner respond within a certain number of days.
If the partner fails to respond, the court will grant a default judgment against them. On the other hand, if the partner responds and raises defenses to the eviction, a court hearing will be scheduled where each party is permitted to call witnesses and present evidence supporting their position. If the court rules in favor of the party seeking an eviction, a judgment of eviction will be entered. If the partner continues to refuse to move out, the court will issue a warrant allowing law enforcement to enter the premises and physically evict the partner.
Excluding a Guest
As described above, if a partner pays anything toward rent, utilities or even food during the time they cohabit, this can be considered rent and gives them status as a tenant. This is most often the case. However, if absolutely no form of rent was ever paid by the partner, they may be classified as a guest, or licensee, in the home.
Guests have fewer rights than tenants. In many states, it is not necessary to serve a guest with a 30-day termination notice followed by formal eviction proceedings. Rather, they can be excluded from your property like any other trespasser. That is, the police can be asked to remove them.
However, the longer the partner has resided in the unit, the harder it is to establish that they are a guest. Before calling the police to exclude a partner who has been cohabiting there for more than a few weeks, it is a good idea to seek advice from a landlord-tenant attorney.
Avoiding Eviction Actions
It isn't easy or pleasant to file an eviction action against a former partner after a breakup. Even if it proves successful in the long run, the partner being evicted will have the right to stay in the unit through the period of notice of termination of tenancy – at least a month and maybe two – during the time the eviction case is pending. If defenses are raised, the matter can be drawn out, an attorney may be required, and it can become an expensive endeavor.
It is always better to consider early on what will happen to the dwelling unit if the partnership ends and to put that in writing. Failing that, open communication between the partners often results in a compromise solution short of eviction.
Partners in conflict may be able to resolve their issues by seeking mediation with a neutral party familiar with local laws. In mediation, the mediator assists the parties to work toward a solution that will be acceptable for both of them. Some attorneys offer mediation services; check with the local court or bar association for a list.
- Law for Families: How to Evict a Domestic Partner
- Combs Law: How to Evict a Live-in Girlfriend or Boyfriend
- Free Advice: Evicting a Domestic Partner After Splitting Up
- Expert Law: If You're Not Married Can You Lock Your Ex- Out of Your Home
- Legal Match: California Domestic Partnerships and Community Property Law
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.