What are the legal means to remove a tenant I have allowed to stay rent-free?

Q : I tried to help out a friend in distress about a year ago. I found out that this friend from my old job had been laid off and had become homeless. I let him move into my apartment’s spare bedroom, free of charge.

I feel that I cannot continue this act of charity and I want my privacy back. I have asked him to leave but he doesn’t appear to be making any effort to do so.

A real estate agent says my friend is a trespasser, since we have no rental agreement or landlord-tenant relationship. She says I can call the police to have him removed or I can change the locks on a day when he is away from the unit.

I don’t want to get in any trouble, so I am writing to ask your opinion about what my legal rights are.

A

: You allowed this person to move into your property with your permission, so he is not a trespasser.

Actually, there is a specific term for an adult living in a rental property without paying rent or being party to a rental agreement, verbal or written. The term that applies is “tenant at will.”

Since the law regards him as a tenant, he cannot be locked out or forcibly removed (this is called “constructive eviction” and is not allowed).

Your only legal avenue is to give him a written notice of termination of tenancy. If he doesn’t leave voluntarily after receiving written notice, you can file an eviction lawsuit, known as an unlawful detainer, in court. Since he is a tenant at will, you need only give him a 30-day written notice to vacate, rather than the 60-day notice that would be applicable to a traditional month-to-month tenancy of more than a year.

If an unlawful detainer action becomes necessary, you should seriously consider hiring an attorney who specializes in evictions. Although that will be an added expense for you, we have found that very few inexperienced “landlords” can successfully prosecute an unlawful detainer action without legal counsel.

There are a number of technical requirements that must be carefully followed, and a mistake such as using the wrong language in the notice to terminate could result in a judgment in the tenant’s favor. Before going the legal route you can contact the local mediation program in your area.

A mediator can bring both you and your tenant together under conditions that are neutral and convenient. Mediation would allow you to look for ways to mutually agree on an acceptable solution.

However, any solution you reach should accomplish your purpose. For example, you could offer a financial incentive, but payable only after he vacates. You might also include his agreement to stipulate to an eviction judgment if he fails to vacate.

Rent Watch is produced by Project Sentinel. To submit a question, e-mail info@housing.org.