Despite the fact that they might be violating their lease or rental agreement, it's not uncommon for tenants to have a friend or significant other move into their rental unit without the landlord's knowledge. Alternatively, landlords sometimes allow a significant other to move in without signing the lease (or they turn a blind eye to the arrangement).
Unfortunately, the tenant might find themselves stuck with a roommate with whom they no longer like, who doesn't pay rent, or who might even be violent or abusive. So, how does a tenant evict a roommate who's not on the lease?
In some areas, unauthorized roommates (and even guests who overstay their welcome) might become legal tenants (even when they don't sign a lease or rental agreement), simply by virtue of the length of their stay. So, in case you end up in court having to formally evict your roommate, it's a good idea to keep records of each step you take in the process of removing them.
Your absolute first step in trying to kick out a roommate who's not on the lease is to have a conversation with them. Try to work out a timeline by which they'll move out. If they resist the idea of leaving, point out that it's easier on you both if they move out without involving the landlord or judicial process.
If they agree to move out, be sure that you get all keys they might have. If possible, change the locks and any door codes (check with your landlord first)—you don't want the ex-roommate popping back in unannounced.
If you can't reach an agreement with your unwanted roommate, it's time to take steps to evict them.
Most landlords require all adults living in a rental to sign the lease or rental agreement. In addition, most leases and rental agreements explicitly prohibit non-signers from living in the rental, and limit the number of days that guests may stay at the property. Caution: Assuming your lease or rental agreement contains similar provisions, your landlord likely has the right to terminate your tenancy (and possibly evict you) for bringing in an unauthorized roommate.
Read through your lease in its entirety to see what your rights are and what the landlord's rules are about extended guest stays or unauthorized roommates. Most leases will simply ban extended stay guests, but won't give you guidance about how to deal with them, though.
Depending on your relationship, you might consider enlisting your landlord's help in removing the unwanted roommate—especially when the landlord approved a subtenancy or was aware of the roommate. However, if you brought in an occupant in violation of a clause in your lease or rental agreement (such as a no-long-term-guests clause or a no-subletting clause), your landlord might simply terminate your tenancy—meaning both you and the roommate will have to move out—to be rid of the problem.
Even if your landlord would like to help you remove your roommate, your landlord might ultimately decide there's no viable solution other than to evict all people living in the rental and start fresh with a new tenant.
Due to the complexity of getting rid of an unauthorized occupant in your rental, consider consulting with a local landlord-tenant attorney before taking any action. State and local laws vary greatly, and often just one misstep under the law can set you back to square one in the process of removing a roommate.
You need to let your roommate know—in writing—that you are ending the current living arrangement. In the written notice, give a deadline by which the roommate (and the roommate's personal property) must be out of the rental.
If your state or local law considers your roommate to be a tenant, you'll need to follow all applicable lease termination and eviction laws. In some places, that unfortunately might mean that you need a just cause—a legal reason—to evict your roommate. In areas with rent control, this is likely to be the situation. If you live in an area with rent control, it's a good idea to contact the state or local rent control board or agency for resources to assist you in the process.
In most situations, though, you should give at least the same amount of notice required to end a month-to-month tenancy (probably 30 days). Take a look at your local court's website to see if it provides a form notice to terminate. If not, you can draft your own notice.
Make sure that your roommate receives the notice: As silly as it might seem given that you live together, consider mailing the notice via certified mail for proof of receipt. Keep a copy of the notice for yourself. It's a good idea to look into your state's eviction and service laws to determine how courts require notices to be delivered.
If your roommate ignores your notice and remains in the rental, you might have to file an eviction lawsuit. In general, the procedures for evicting a resident who isn't a party to the lease or rental agreement will be the same as those for official tenants, but your state or local laws might be an exception.
A local landlord-tenant attorney can help you navigate how to proceed in your area's courts. If you can't afford an attorney, check with the court to find out if there are low-cost or free clinics or assistance for renters.
Keep in mind that regardless of the roommate's status on the lease or rental agreement, it's illegal to physically remove or lock out a tenant (or a roommate who might have legal rights similar to a tenant's) from a rental.
Even when your landlord approves a subtenancy, removing the subtenant can be challenging. Depending on the terms of your lease or rental agreement, you might be solely responsible for terminating the subtenancy. If the subtenant doesn't leave voluntarily, you might have to file an eviction lawsuit on your own.
Evicting a subtenant can be especially difficult when you don't have a written subtenancy agreement covering issues such as termination and eviction rules and procedures. And, if the property is rent-controlled and requires "just cause" (a good reason) to evict, you'll need to follow all rent-control-related laws. In any case, eviction lawsuits can be an expensive and time-consuming process.
Some cities, such as San Francisco, allow landlords to designate "master tenants"—tenants who perform many of the same functions as a landlord. For example, a master tenant might be responsible for collecting rent from subtenants, notifying the landlord about needed repairs, and evicting subtenants. Most of the time, master tenants are tenants who at one point signed a lease with cotenants, then continued to live at the rental long after the original cotenants moved elsewhere. Often, a tenant takes on the responsibilities of being a master tenant in order to remain at the rental and take advantage of rent control. If you're a master tenant who needs to remove a subtenant, consider contacting a local landlord-tenant attorney or your local rent control board (if applicable) for advice on how to properly terminate the subtenancy.
In a best-case scenario, you'll be able to work out an agreement to have your roommate leave without involving the landlord or the courts. But, if diplomacy doesn't work, your options become trickier. Before you involve the landlord, consider whether it's likely that your landlord might simply terminate your tenancy rather than get involved with the dispute. And, if you decide to take steps to judicially remove your roommate, you'll have to follow all the applicable state and local laws.
As a tenant, there are many online resources for finding help. Due to the potential complexity of your unwanted roommate situation, removing the roommate might not be a DIY task. In that case, consider hiring a local landlord-tenant attorney, or tracking down legal aid or pro bono representation.