How to Evict Someone Who Pays No Rent

When you read this title, it may make no sense — who would rent to someone and not charge them rent? Our office has run into this situation in a number of ways most of them involve family relationships or romantic relationships which have turned sour. The individual usually has resided at the premises for some time. They are unfortunate in almost every circumstance and most of the time, our office gets called after the owner of the home has tried, unsuccessfully, to get the other person to leave voluntarily.

Under these circumstances, there are only a few options to consider. First, you could claim that the unwanted person is living at the premises as a gratuitous tenant. If you are staying somewhere and are not providing any consideration for your occupancy, then you are not a tenant and you are not entitled to a notice to quit. Rather, if your host asks you in writing to leave and you refuse, your host can go to Court and immediately start a summary process action (an eviction action) and seek an order to remove you from the premises.

So what is consideration?  Most often it is money. But, keep in mind that consideration does not necessarily have to be in the form of rent. If your guest is helping the household by paying for utilities, or food, those contributions could be considered consideration. Those actions could be consideration which would make your guest a tenant. Once someone is a tenant, they are entitled to either three months or one month notice before starting eviction proceedings, depending on how often the consideration is paid.

Another option is to argue that your guest is a licensee. A licensee is a “person who is privileged to enter or remain on land only by virtue of the possessor’s consent.”  Restatement of Torts, Second § 330. The key to this argument is that the owner of the Property retains legal possession, custody and care of the whole house and of every room. In other words, this argument works best when a guest is using one particular room in the home, but does not have exclusive access to it. For example, if someone comes and stays in your guest room, but you enter the room regularly to empty the trash, change the sheets, vacuum or even to get things out of the closet, then your guest does not have exclusive access to the room. Further, the guest must not be making any financial or other contribution to the operation of the home. As with a gratuitous tenant, a licensee is not entitled to a formal notice to quit, but rather just a letter asking him or her to leave.

Trying to evict without notice comes with risks. If your guest is not a gratuitous tenant or a licensee, but is a tenant and you have not sent a proper notice to quit, then you will lose your eviction case and have to start all over by providing notice. You should tread carefully and understand the risks of not providing a formal notice to quit.

The most conservative, but most time consuming process is to send a formal notice to quit. If your guest is providing some sort of consideration, like paying the utility bills every month, then you can provide a 30 day notice to quit. However, if the consideration is not paid as regularly or if you want to argue gratuitous tenancy or licensee and don’t want to concede that there is consideration, then you should serve a 3 month notice to quit. Why you may ask? The statute provides that you can serve a notice to quit in the interval in which rent is paid or 3 months.

Whenever you are an owner and need someone to move out, its always best to consult with a lawyer who can help you figure out the proper process and ask you other questions about your possible risk for counterclaims before you start any proceedings.