Law Offices of Heist, Weisse, and Wolk, P.A.
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More often than ever before, residents are having roommates move into their rental houses or apartments for a myriad of reasons, the most common being to help with expenses and contribute to the rent. More residents are taking in roommates that they do not know very well through the use of classified services, roommate services or referrals from friends. Sometimes it works out for them; sometimes it becomes the nightmare roommate situation. Many managers really are not too concerned about who is living in a unit these days if the rent is flowing in and there are no complaints by neighbors or police, so even if the manager becomes aware of the roommate, they will generally ignore the situation. In conventional housing when most often there are no restrictions on occupancy or number of unrelated persons in a unit, one additional roommate does not pose a problem legally. In tax credit properties, subsidized properties or in units where the resident is receiving state or federal funds, the mere presence of the roommate residing on the premises could result in the manager and the resident being out of compliance with the laws governing the tax credits or subsidies, and cause a serious risk to the manager’s business, or the resident could end up losing her subsidy, resulting in the manager not receiving the subsidy payment. In these cases, it is crucial that the manager takes action immediately to have the resident have the roommate removed from the premises or the resident on the lease evicted. This article will deal with a different situation, that being the case when the resident comes to you asking you to help remove the roommate for them.


The Scenario


Your resident comes to you at her wit’s end. She tells you that she took in a roommate and the roommate is causing her serious problems. These problems may include drug use, alcohol, parties, things disappearing; unruly guests, or possibly the roommate simply is not paying his share of the rent. The resident wants the roommate out, but the roommate simply refuses to leave. In some cases the situation is so bad, the resident has had to move out temporarily, as she is being terrorized by the roommate, and now sheepishly is asking you, the manager, to get the roommate out. Your resident has called the police, and the police told her, “It is a civil matter,” and to consult an attorney. You may or may not have known of the roommate, but now you know for sure and are being pulled into a mess that was created by the resident taking in the unauthorized roommate.


The Request and the Problem.


Your resident is now asking you, the manager, to remove a person with whom you have no legal relationship. She may ask you to “evict" the roommate, thinking that somehow you have to power to do so, being that you are indeed the manager. The fact that you have no legal relationship with the roommate will make it impossible to remove the roommate alone. You cannot file an eviction against that roommate. Rather, the resident must, as she has the legal or quasi- legal relationship with the roommate, and most likely it was not in writing. If there was indeed a lease between the roommate and the resident in writing, the resident has become the “manager”, and although she may be illegally subletting the unit, the resident would need to file an eviction against the roommate as the manager. It is rare that residents have any written agreements in place with acquired roommates.


The Initial Reaction


Your initial reaction may be to tell the resident that it is her problem, and she has to deal with it, and you would be mostly correct. Your resident caused this problem by taking in the roommate, and your resident needs to deal with it. The larger problem is that your resident is telling you that if she cannot get the roommate out, the resident will have to vacate. This will leave you with a person in your unit who has not signed a lease, and with whom you have no legal relationship. If you were to call the police, they would give you the same response, which would be, “It is a civil matter; you need to hire an attorney”.


Feeling Sorry for the Resident


Since you have been getting your rent on time, and let’s face it, you are a bit desperate and do not want a vacancy, you may be tempted to feel sorry for your resident because of this roommate problem. Stop right there. Your resident violated the terms and conditions of the lease by taking in this roommate. This roommate is an unauthorized occupant, plain and simple. Your resident has and is violating YOUR lease. The roommate may even be a sexual offender or predator who would in no way have passed your criminal background check, thus causing liability to you or your company and possible danger to other residents or their guests.


Moving the Resident


One request that may come from your resident is for you to move her into another unit on your property. That seems like a simple way to help out your resident and solve your resident’s problem. Just move her to another unit. That’s great. Now you have your resident who violated her lease in one unit and the roommate in another unit. Never even think about doing this.


Actions to Take


  1. Action by Resident: If your resident is having serious problems with the roommate that rise to the level of criminal activity, the roommate has injured or threatened to injure the resident, or the resident is in fear of her life, the resident should immediately go to the county courthouse and see if she can obtain a restraining order against the roommate or a temporary injunction against the roommate, which may require the roommate to vacate. Each county courthouse has a department dedicated solely to injunctions and restraining orders. If the problem is severe enough, the roommate may be required to immediately vacate by force of law, and if he returns, could end up being arrested. Residents routinely are able to get restraining orders and injunctions against one another, essentially kicking one resident out of the unit, and the courts generally do not care whether one or both are actually on the lease agreement. This is an option for your resident, but you should not advise the resident beyond the suggestion of pursuing this option.


  1. Action by Property Manager: Your resident has an unauthorized occupant residing on the premises in violation of the terms of your lease. Your resident needs to be served a Seven Day Notice of Noncompliance With Opportunity to Cure immediately stating the following:


“You are in violation of the terms and conditions of your lease agreement due to having an unauthorized occupant residing on the premises. This occupant must be removed.”


Serve this notice and refuse any more rent unless you know for a fact the roommate has vacated, and possibly get something in writing from the resident stating that she has removed the unauthorized occupant.


The Roommate Fails to Vacate


If the roommate fails to vacate and your Seven Day Notice of Noncompliance with Opportunity to Cure has expired, you will then serve a Seven Day Notice of Noncompliance Notice of Termination, and upon expiration of that notice, your attorney will file an eviction. Proving the roommate is still there is often difficult, and your attorney will help you decide if you have a strong enough case. Your attorney will file an eviction against your resident. Your resident and the roommate will need to be evicted. There is no choice. We have seen some situations in which the manager and the resident make a deal under which the resident will not fight the eviction, allow herself to get evicted, and the manager allows the former, now evicted resident to move back in. Big mistake. The roommate may reappear, and the problem starts all over again. Additionally, who paid for the eviction?


Some Final Words

In tough economic times, the temptation to “help out a resident” so as to not lose the resident can have disastrous results. Do not make someone else’s problem that she herself caused become your problem that can be costly for you to solve. A resident who gets an unauthorized roommate is a lease violator and should be treated as such.



  • The Curable Noncompliance Examined PART 1