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andrea_2007 · Nov 27, 2007, 07:45 PM

Originally Posted by andrea_2007

I am gonna give her a 15 days notice. But i wonder what this notice should contains?.

But she still can use it against me to prove that I was renting the bedroom to her!

ScottGem · Nov 27, 2007, 07:49 PM

Again, you need to follow the exact procedure for eviction. If you don't you may be giving her grounds for a suit. Since there is no written lease she is a periodic tenant. That means you have to give her written notice of at least one rental period that you are terminating her residency. And yes this confirms that she is a resident, BTU I don't think you have any other choice in the matter.

andrea_2007 · Nov 27, 2007, 07:58 PM

Originally Posted by ScottGem

Again, you need to follow the exact procedure for eviction. If you don't you may be giving her grounds for a suit. Since there is no written lease she is a periodic tenant. That means you have to give her written notice of at least one rental period that you are terminating her residency. And yes this confirms that she is a resident, btu I don't think you have any other choice in the matter.

What did the RE lawyer said to you about my case?

ScottGem · Nov 27, 2007, 09:16 PM

I don't think your moving is the answer. If your lease isn't up you could be held liable for the rent until the end of the lease. If you move and she doesn't, you could be liable for any damages she causes.

LisaB4657 · Nov 28, 2007, 06:43 AM

Your roommate is a month-to-month tenant. You have to give her 30 days WRITTEN notice that her tenancy is terminated and she must move out. Let her make all the threats she wants because legally there is nothing she can do about it.

After the 30 days is up, if she hasn't moved out you have to file a lawsuit for eviction.

ScottGem · Nov 28, 2007, 07:04 AM

Originally Posted by LisaB4657

Your roommate is a month-to-month tenant. You have to give her 30 days WRITTEN notice that her tenancy is terminated and she must move out. Let her make all the threats she wants because legally there is nothing she can do about it.

After the 30 days is up, if she hasn't moved out you have to file a lawsuit for eviction.

Lisa is the NJ based real estate atty I mentioned earlier. So I would take her advice as gospel here. Sorry that there is no quick fix for you, but if you want to avoid giving her grounds to sue you, you have to follow the letter of the law carefully.

You still have the possibility of a restraining order though. Its possible, when you serve her with written notice (I would do it in front of a witness) that she may fly into a tirade (another reason for the witness) that will give you an excuse to call the police.

Emland · Nov 28, 2007, 07:06 AM

I still stand by my statement that the unwanted person is a guest. The OP lacks the legal capacity to grant tenancy. The legal tenants are the people on the lease.

I have sent an email to a friend who was a property manager for over 10 years to get her take on it. I will post that when she responds.

LisaB4657 · Nov 28, 2007, 07:08 AM

Emland, the OP is a sublandlord and her roommate is a subtenant. The OP has the legal capacity to grant the tenancy because she has a legal interest in the property by virtue of being a tenant under a written lease. If the written lease does not permit subletting then the roommate is a subtenant under a subtenancy that would probably be ruled invalid if the original landlord filed suit, but it is still a legal subtenancy as between the OP and her roommate.

ScottGem · Nov 28, 2007, 07:17 AM

Originally Posted by Emland

I still stand by my statement that the unwanted person is a guest. The OP lacks the legal capacity to grant tenancy. The legal tenants are the people on the lease.

I have sent an email to a friend who was a property manager for over 10 years to get her take on it. I will post that when she responds.

First a guest is someone invited to live in a home free of charge on a temporary basis. There is no grounds for considering the roommate a guest. She was a stranger, she paid rental, she is NOT a guest, no way, no how. Second you are incorrect about the OP lacking legal capacity. As Lisa pointed out, the OP may have violated her lease by subletting, but that is a matter between her and her landlord. That does not change that she entered into a rental agreement with someone.

Emland · Nov 28, 2007, 07:31 AM

Here is my friends response:

" Unless they have a signed lease with this said
"nutcase", she doesn't have a leg to stand on.
Furthermore, if the landlord's lease has a stipulation
about subletting, they are in violation of their
lease. They do not have to go to the extreme of
evicting."

I had a rental property for years. We had to evict the tenants, who had acquired a couple of roomies to help them pay their rent. When we went to the magistrate we showed our lease and got our eviction paperwork for the tenants, we were told anyone in the house besides the tenants was a trespasser. I will say Virginia leans to the conservative side and generally is more lenient to the landlord than to the renter.

LisaB4657 · Nov 28, 2007, 07:38 AM

Originally Posted by Emland

Here is my friends response:

" Unless they have a signed lease with this said
"nutcase", she doesn't have a leg to stand on.
Furthermore, if the landlord's lease has a stipulation
about subletting, they are in violation of their
lease. They do not have to go to the extreme of
evicting."

I had a rental property for years. We had to evict the tenants, who had acquired a couple of roomies to help them pay their rent. When we went to the magistrate we showed our lease and got our eviction paperwork for the tenants, we were told anyone in the house besides the tenants was a trespasser. I will say Virginia leans to the conservative side and generally is more lenient to the landlord than to the renter.

Your friend's response may be appropriate for VA but in NJ the law and courts are extremely tenant-oriented. A verbal month-to-month tenancy is recognized and the police will not remove the OP's roommate as a trespasser. In fact, if the OP tries to lock out the roommate the police will force the OP to let her back in and the roommate would have a great case against the OP for an illegal eviction and damages.

ScottGem · Nov 28, 2007, 07:39 AM

Your friend is right, the roommate doesn't have a leg to stand on. She has no legal justification to stay once the landlord tells her to vacate. I think we all agree on that. That doesn't mean, however, that she can just be thrown out.

That's the real issue here, not that she has to leave, but how to get her out. If they just throw her out, then the OP is breaking the law and opening themselves up for a lawsuit. That's why they have to go through the eviction process.

The OP may very well be in violation of their lease and that may be grounds for their landlord to evict them. But that has NOTHING to do with getting the roommate out. Your friend is wrong if he thinks they can legally evict her without going through a formal eviction.

As to the instance you cited, its true that as far as you were concerned their roomies were trespassers. You had a relationship only with the leasees. Once you evicted them, anyeone else still on the premises would be trespassers. However, if THEY had try to get the roomies out they would have had to go through an eviction.

Emland · Nov 28, 2007, 07:43 AM

Without a lease, what do you show the magistrate for the eviction notice? The courts want paper. She doesn't even have a cancelled check for evidence.

CaptainRich · Nov 28, 2007, 07:47 AM

Originally Posted by Emland

Without a lease, what do you show the magistrate for the eviction notice? The courts want paper. She doesn't even have a cancelled check for evidence.

How long has she been there? Has she changed her address on her driver's license? Or is she having her mail forwarded? If she has either of these done, that may be proof enough that she resides there.

ScottGem · Nov 28, 2007, 08:03 AM

Originally Posted by Emland

Without a lease, what do you show the magistrate for the eviction notice? The courts want paper. She doesn't even have a cancelled check for evidence.

She has the fact that she resides there. That she has clothes there. If she has received any mail there, that's proof. If she has a receipt for what she paid, that's proof. Lisa told you an oral agreement is enough, at least in NJ (and lots of other places). You keep approaching this from the angle of whether the roomie is entitled to stay. We've already agreed she's not. But if they just throw her out, they will be in trouble.

LisaB4657 · Nov 28, 2007, 08:14 AM

Originally Posted by Emland

Without a lease, what do you show the magistrate for the eviction notice? The courts want paper. She doesn't even have a cancelled check for evidence.

Yesterday you posted a link in this thread for the OP. The link was LSNJLAW - Tenants' Rights in New Jersey. I went to check it out and this site is an excellent source for NJ landlord/tenant law. In Chapter 4 of this site, at LSNJLAW - E: Chapter 4: Leases is a description of what constitutes a lease. A portion of that description is:

What is a lease?

A LEASE IS A CONTRACT (agreement) between a landlord and a tenant for the rental of an apartment or house. A lease can be an oral (spoken) agreement or it can be in writing."

Please believe me when I tell you that NJ courts recognize verbal agreements for the lease of property for less than one year. The OP's roommate is a legal month-to-month tenant under NJ law and the court will see her as such, regardless of whether any paper exists. And NJ is so tenant-oriented that if the OP tries to get rid of her roommate in any way other than a legal eviction through the courts, the roommate will be able to file a lawsuit for illegal eviction and will be granted damages.

Emland · Nov 28, 2007, 09:16 AM

Originally Posted by LisaB4657

What is a lease?

A LEASE IS A CONTRACT (agreement) between a landlord and a tenant for the rental of an apartment or house. A lease can be an oral (spoken) agreement or it can be in writing."

Exactly. The OP is not the landlord (I am making an assumption that her lease forbids it), she is a tenant with a legal lease to the rental company and therefore cannot legally contract for tenancy to another person.

I went up the chain at my office and got this from my Team Leader:

"There is always a lot of drama in real estate. The nutcase hasn't been in the house
long enough to "establish residency". Along with the fact that she doesn't
have an agreement with the actual landlord, so she is a guest. Now if the
landlord knows of her presence, the actual tenants need to be served with
notice that the "guest" must leave the premises."

I would really like to hear a judges opinion on this. This has been a really interesting thread.

ScottGem · Nov 28, 2007, 09:56 AM

Originally Posted by Emland

Exactly. The OP is not the landlord (I am making an assumption that her lease forbids it), she is a tenant with a legal lease to the rental company and therefore cannot legally contract for tenancy to another person.

Em,
I have a lot of respect for you, but you are really being obtuse here. What makes someone a landlord is the offer of a place to use for remuneration. The OP offered a room to this person in return for a rent payment. That and that alone makes the OP the landlord and the other person the tenant. Whether the OP has the legal right to offer the premises for rental has not been established either way, but it's a moot point. If she was not allowed to do so, that would cause a problem between the OP and HER landlord and does not affect her relation to her tenant. She entered into an agreement to allow the person to live on the premises. Money changed hands, therefore a lease was established. There appears to be no question about that. Therefore, the tenant has to be evicted.

Originally Posted by Emland

I went up the chain at my office and got this from my Team Leader:

"There is always a lot of drama in real estate. The nutcase hasn't been in the house
long enough to "establish residency". Along with the fact that she doesn't
have an agreement with the actual landlord, so she is a guest. Now if the
landlord knows of her presence, the actual tenants need to be served with
notice that the "guest" must leave the premises."

I would really like to hear a judges opinion on this. This has been a really interesting thread.

Your Team Leader is wrong. The change of money made her a resident since it established the landlord/tenanct relationship. One day of residence was sufficient. She has NO relationship to the OP's landlord, none whatsoever. The OP's landlord has the option of terminating their lease because of violating the no sublet clause (IF THERE WAS ONE). This would automatically void the subtenant's lease as well. But the OP's landlord has no legal relation to the subtenant.

But you are really missing the real issues here. The real issue is not the legality of the relation of the OP to the subtenant. The subtenant has no legal standing on that issue. She could report it to the OP's landlord, at which point that landlord can decide how to deal with the OP. But she can't sue on the grounds that the OP didn't have a right to rent her the place. The only way she could sue on those grounds was if the OP was being evicted because of a lease violation forcing the subtenant to move. But that's not the case.

The real issue is what the OP needs to do to get the subtenant to vacate. Since there is no written lease, the subtenant is a periodic tenant on a month to month basis. Therefore, the OP can terminate the lease with 30 days notice for ANY reason. Therefore the subtenant has to get out. She doesn't any grounds to stay or any grounds to fight the eviction.

But, if the OP tries to remove her without going through a proper eviction, the OP is opening herself for an illegal eviction lawsuit. So the ONLY choice the OP has is to make sure she follows the eviction process to the letter.

Emland · Nov 28, 2007, 10:46 AM

We will just have to agree to disagree Scottgem. I'm going to go with what the people with the combined 30 years of practical real estate experience have told me.

Let's look at this practically. Roommate starts another screaming fit. OP finally gets sick of it and calls the cops. The cops arrive. OP wants Roomie out. Roomie insists she lives there. Cops ask for lease - she's not on it. Cop asks for ID - the address doesn't match. To change your ID at the DMV requires that you show a utility bill - not just any mail now.
The cops tell her to leave or face trespassing.

Let's say she is mad enough to sue. She gets before the judge and tells her tale. If she is as crazy as the OP describes, the OP won't have to say a word. She'll dig her own grave. At worst the OP has to give back the money she paid which will be impossible to prove with no receipt and no cancelled check. I can't imagine a judge even listening to it.

When I see my broker at the upcoming Christmas party, I'll have to run this one by him.

LisaB4657 · Nov 28, 2007, 11:29 AM

Originally Posted by Emland

We will just have to agree to disagree Scottgem. I'm going to go with what the people with the combined 30 years of practical real estate experience have told me.

I'm going to have to agree with ScottGem and agree to disagree with you, Emland. I'm going to have to go with my 20 years of practicing residential and commercial real estate law in NJ, including representing a client who owns over 20,000 apartments in NJ. For over 12 years I appeared before landlord/tenant judges on a monthly basis in 12 different counties and I'll rely on that experience.

Originally Posted by Emland

Let's look at this practically. Roomate starts another screaming fit. OP finally gets sick of it and calls the cops. The cops arrive. OP wants Roomie out. Roomie insists she lives there. Cops ask for lease - she's not on it. Cop asks for ID - the address doesn't match. To change your ID at the DMV requires that you show a utility bill - not just any mail now.
The cops tell her to leave or face trespassing.

Incorrect. All the roommate will have to do is have the cops escort her inside where she can show them her belongings in her room. Unless the roommate has physically assaulted someone or committed some other crime, the cops will turn around and leave.

To the OP: Don't even try to get rid of this roommate except by following the NJ legal procedure for eviction.