Can my roommate kick me out if I'm not on the lease?

Who Is the Landlord?

Getting rid of a roommate in Texas usually involves one of two typical scenarios. In both, a tenant rents the premises from a landlord and brings in a roommate. If the landlord approves of the roommate, and the roommate pays rent directly to the landlord, they are considered renting directly from the landlord. This is true whether or not the roommate’s name is added to the written lease or rental agreement.

However, if the tenant brings in a roommate without running the matter by the landlord, it is another matter. If the roommate is not added to the lease or rental agreement and pays rent to the tenant, not the landlord, then the roommate is renting from the tenant. In this scenario, the tenant is the subtenant’s landlord, rather than being a co-tenant to the lease.

Valid Reasons to Evict Roommates 

Now, most people find themselves in a strange legal gray area when it comes to kicking out a roommate not on the lease. When lease agreements stipulate that only the leaseholder can be the sole occupant of the property, most people think that means that people can simply be kicked out on that basis alone. They believe that people not on the lease aren’t entitled to the same type of protection under the law when it comes to eviction. Technically, this is not true and the person cannot be evicted without what many state laws deem just cause, or a good reason.

Here’s a quick breakdown of common valid and invalid reasons to consider eviction:

Valid ReasonsValid reasons to evict someone include: 
  • They are breaking a clause in the lease, exempting the one about their occupancy, since they are now entitled to their own legal protections as tenants. 
  • Having a pet when the lease forbids it
  • The person is not honoring the payment of the rental agreement. 
  • The person is not paying and does not reside in a state covered by eviction moratorium laws. 
  • The person is knowingly and intentionally damaging the property.
  • The person is committing crimes as an occupant. 

In other words, there are currently some exemptions with the Coronavirus in the United States that make it harder to start the eviction process with tenants. Many courts that no longer uphold the Eviction Moratorium are still closed except for high-priority cases, with many cases concerning evictions not being considered relevant. 

Invalid ReasonsInvalid reasons to evict someone include: 
  • The person is a bad roommate or no longer the individual’s romantic partner. 
  • Being a “bad roommate,” including being nosy, being dirty, or stealing food. This would not violate the grounds of the lease. 
  • When a relationship ends, one roommate might wish to kick the other out. However, except in cases of domestic violence and where crimes have occurred, the other person still has a right to occupancy. 
  • The roommate is not paying rent, but they are not on the rental agreement.

The last one is tricky because the nonverbal agreement may concern the leaseholder, but if the person not on the lease doesn’t pay them, then it’s not truly considered nonpayment of rent according to the lease. Nonpayment of rent according to the lease would be nonpayment of rent to the landlord themselves, not the person on the lease who rents to the landlord. 

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How do I evict someone from my home?

If asking does not work, and you have the right to evict, you might consider actually giving your unwanted roommate or family member an Eviction Notice. This is not the same as filing an eviction lawsuit, but is often required before doing so.

An Eviction Notice tells a tenant or subtenant that they must correct a violation of your Lease Agreement or leave by a certain date. For example, a tenant may fix an Eviction Notice for unpaid rent by paying the unpaid rent. On the other hand, an Eviction Notice for not leaving after the end of the lease usually cannot be corrected.

In most states, the process for evicting someone who lives with you, if you are legally allowed to do so, is similar to the process for evicting a tenant. Treating your roommate like a tenant increases your chances of success. This means that evicting a roommate requires following many of the same rules for evictions that landlords must follow. These rules can be complicated and require meeting certain deadlines.

If you live in an area with strong renters protections, you may want to ask a lawyer before you get started as mistakes in the eviction process can be costly.

Step 6: File an Appeal

Finally, if the judicial officer issues a ruling stating that the unwanted occupant doesn’t have to move out of the property, you (or the landlord, if you’re renting) could file an appeal.

This means filing a notice of appeal as soon as possible after the original court makes its ruling. Most states have an appeal deadline, giving anywhere from a few days to a about a month after the ruling is issued to file an appeal.

Note that in most states, a ruling in an eviction case can only be overturned if the lower court made a legal mistake in arriving at its judgment, like not allowing witnesses when the law requires it, and has nothing to do with whether you (or your landlord) liked the outcome of the case or not.

Appeals can take a few weeks to a few months, and may require additional filing fees, depending on the state.

Put the Roommate on Notice

Removing an unauthorized roommate who doesn’t want to leave can be challenging. Under many laws, all occupants—even those whose presence wasn’t authorized by the landlord—have certain rights to remain at a rental, especially when they’ve lived there for a long time.

You need to let your roommate know—in writing—that you are ending the current living arrangement. Give a deadline by which the roommate (and the roommate’s personal property) must be out of the rental. Even though the roommate isn’t an official tenant, you should give at least the same amount of notice required to end a month-to-month tenancy. In most states, the notice period is 30 days. Make sure that your roommate receives the notice: As silly as it might seem given that you live together, consider mailing the notice via certified mail for proof of receipt. Keep a copy of the notice for yourself.

If your roommate ignores your notice and remains in the rental, you might have to file an eviction lawsuit. In general, the procedures for evicting a resident who isn’t a party to the lease or rental agreement will be the same as those for official tenants, but your state or local laws might be an exception. A local landlord-tenant attorney can help you navigate how to proceed in your area’s courts. Keep in mind that—regardless of the roommate’s status on the lease or rental agreement—it is never legal to physically remove or lock out a tenant (or a roommate who might have legal rights similar to a tenant’s) from a rental.

How to Evict A Roommate

In order to evict a roommate in California, a tenant must follow the process below:

1. Provide Written Notice

Before filing a formal legal procedure to evict a subtenant, the tenant must provide the subtenant with written notice to leave the premises within 30 or 60 days. Thirty days is the minimum requirement for month-to-month subtenants. However, if the subtenant complies with the demands of the notice, such as paying back rent, then they may continue residing on the property.

Furthermore, a tenant can provide the subtenant with a three-day notice if they meet the criteria above for eviction. However, the tenant must provide the subtenant with a detailed explanation about the reason for eviction pursuant to the three-day notice.

2. Unlawful Detainer Lawsuit

Once the notice period concludes, if the subtenant is still occupying the premises, the tenant may file an unlawful detainer to legally evict them. To initiate the formal eviction process, the tenant will need to file the complaint with the court and serve the summons and a copy of the complaint on the subtenant. Then, the subtenant will have to respond within five days or vacate the premises.

Additionally, the subtenant can oppose the complaint and file a response. Under these circumstances, the court will set a hearing date on which both parties must attend court and discuss the merits of their case. Then, after hearing both sides of the issue, the judge will issue a final ruling.

If the judge rules in favor of the tenant, the local sheriff can serve the subtenant with a five-day “lock out” notice to vacate. However, if the subtenant refuses to leave by the “lock out” deadline, the sheriff will physically remove the subtenant on the day of “lock out.” On this date, the tenant can legally change the lock on the apartment.

Notice to Vacate

The amount of time provided to a roommate in a notice to vacate depends on the reason for the eviction. If the roommate has done nothing wrong, the person in contract can terminate the tenancy with 30 days’ notice. The person in contract with them must give them a 30-day notice to terminate/vacate and specify the date on which the tenancy ends. This notice effectively ends the roommate’s right to be in the premises as of that date.

If, on the other hand, they are being evicted for non-payment of rent or some breach of the lease agreement, only three days’ notice is required. In this case, the person in contract with them must give them a 3-day notice to vacate or fix the issue underlying the notice. For example, if they owe back rent, they must pay up or vacate within three days. Note that under Texas state law, a landlord is not required to first give the tenant the option to fix the violation or pay the rent.

Length of Notice

When you provide your sub-tenant with notice of eviction, make sure you provide adequate time for the person to leave. In most cases, this is 30 days, or an average rental period. For example, if your lease says you pay your rent every two months instead of every month, you’ll have to give two months’ notice in your roommate’s eviction notice.

What Are Your Legal Options for Removing a Roommate?

You cannot force a roommate out of your apartment or remove their name from the lease simply because you want them to leave. You have to consult with your landlord or property manager and be sure that everything is done the right way. It’s less than desirable to be in this situation, but always check your state and local laws to see what your actual options are. You can:  

Try to mend fences with your roommate

If the situation is fixable, it’s probably in your best interest to smooth things over. This way, you won’t have to deal with the consequences of breaking your lease or finding a new roommate. If the two of you cannot come to a resolution, then you still have other options.

Break your lease and move to a different apartment

Getting out of the apartment (if your roommate isn’t willing to leave) is a legitimate option. Unfortunately, this means you’ll be breaking your lease which is going to come with some heavy consequences, such as paying an extra two months’ rent. Breaking your lease should ideally be a last ditch effort to get out of a negative situation. If you have a documented eviction or a broken lease agreement on your rental record, it could possibly affect your chances of being approved at another apartment, not to mention you’ll have to hand over a big chunk of change for breaking your lease.

Suggest that your roommate move out

If you don’t want to break the lease yourself, you could suggest to your roommate that they move out instead If they agree to this, and are equally fed up with cohabitating, then you can be free of this roommate situation for good.

Find a new roommate to sublease for them if they leave

If your lease allows subletting, and your prior roommate breaks their lease and moves out of the apartment, then you can find a new roommate to sublet their room. If not, discuss your options regarding getting a new roommate with your landlord or property manager.

Evicting a Roommate Based on “Good Cause”

What makes for a compelling case to evict a roommate not on lease?

There are a few reasons which are considered a “good cause” for evicting a roommate:

  1. Damage to the rental unit beyond normal wear and tear.
  2. Engaging in illegal activities within the rental.
  3. Threatening the health or safety of other tenant(s).
  4. Failure to pay rent and utility bills on time.
  5. Repeated breaches of the lease agreement, such as excessive noise.

If You Fear for Your Immediate Physical Safety

If your roommate is abusing you or you are concerned that your roommate is going to harm you, contact the police for information on temporary restraining orders and communicate your fears to your landlord. Some laws give special protections to tenants who are victims of domestic violence.

When looking for help as a victim of abuse, remember to consider how private your computer, Internet, and phone use are. Consider whether there’s anything you can and should do to prevent someone else from learning that you’re doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.

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