Renters' Forum

How to Kick Out the Deadbeat in the Spare Bedroom

By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, December 1, 2007

Q: At what point does a houseguest become a "lodger" requiring official eviction procedures to remove him? I rent a house from my landlord and have extra space, so I decided to rent a spare bedroom to a man because he was in a difficult situation.

I feel slighted, as I have opened my home to this person on what was clearly to be a temporary basis, but now he refuses to pay rent. There is no lease or written agreement. How can I throw him out now that he refuses to leave? Can I simply change the locks while the guest is gone? Once permission is revoked, at what point is he trespassing?

A: James McKinley, a lawyer for landlords, replies:

Your houseguest is not a lodger. A lodger is defined as anyone who rents a room in a dwelling unit occupied by the owner, if the owner retains a right of access to all areas of the unit occupied by the lodger and has overall control of the unit.

If you were the owner of the house, then a lodger's tenancy could be terminated by written notice. Upon expiration of the notice period provided in the notice of termination, any right of the lodger to remain in the dwelling unit or any part thereof is terminated by law. Also, the homeowner may have police assist in removing the lodger without formal eviction procedures.

However, because you are renting the home, your guest cannot be considered a lodger. Generally, the question of whether an occupant is a tenant (aka roommate) or a mere guest is a mixed question of law and fact, based on factors that include who has direct control over the premises, who is responsible for cleaning and maintaining the premises, who has keys to the premises, whether rent is paid and length of occupancy.

If your houseguest has been living with you for more than 30 days, he would probably be considered a tenant, and the tenancy could be terminated only by proper written notice. If your houseguest does not vacate within the notice period, you would have to commence formal eviction procedures.

If your houseguest has been an occupant for fewer than 30 days, you do not necessarily have the right to use self-help procedures such as changing the locks to throw him out. In many jurisdictions, innkeepers have the right to use self-help methods to evict hotel guests who have occupied a unit fewer than 30 days, but landlords typically do not have the same statutory protection. Your guest may later claim that he had an oral agreement with you and try to make you responsible for damages for an unlawful eviction.

To protect yourself, you should give your houseguest written notice of termination of tenancy and go through the formal eviction process if he does not vacate in the prescribed time.

We leased office space two years ago. We live in a desert. The air conditioner has not worked well and has been expensive to maintain. We recently were told by a heating and cooling expert that the dual heat-air unit is obsolete, as it is more than 15 years old. The landlord wants us to replace it. Our contract says that we will "maintain it," but our position is that it is no longer "maintainable." Nowhere in the contract does it say that we will replace the system. Can he make us pay for it if it is now obsolete?

Robert Griswold, a property manager, replies:

I would say that you have a good argument, that the landlord needs to invest in the new equipment and that you would then be responsible for the ongoing maintenance contract. The problem will come when there are no longer parts available or the equipment might even be illegal (based on the refrigerant) and have to be replaced. Your landlord is being unreasonable. You may want to have a lawyer send a letter to the landlord indicating that you think the landlord is in breach of the lease if he or she doesn't replace the equipment. A new unit will also be more energy efficient, which will help you if you pay for utilities.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenants Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords. E-mail your questions to Griswold at Questions should be brief and cannot be answered individually.

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