Evicting Someone Who Shares Your Home



Can I legally evict someone who shares my home?

In order to evict someone from your home, you must be the person who has legal right to possession of the house or apartment where you live. This generally means that your name is on the lease agreement, deed, or mortgage, or that you have a landlord-tenant relationship with the owner. The person who you are trying to evict cannot also have a legal right to possession. If you meet these conditions, you must then successfully sue them in court and get a warrant of eviction.


How do I start the eviction process?

The first step is to talk to a lawyer. The lawyer will be able to give you the papers you need to start an eviction case against the person you are trying to evict and explain the process to you. If you cannot find a lawyer to help you, the court clerk will be able to give you the papers you need. Once you have the eviction papers (called a Petition and Notice of Petition) they must be served by someone other than you to the person you are trying to evict. Then, they must be filed with the court clerk within three days after they have been served. The person who serves the papers must be 18 or older. The person you are trying to evict must receive this notice 5 to 12 days before the court date.


How do I remove someone after I have won my court case?

If you win your court case, you will have won a Warrant of Eviction, it must be properly served. Give a copy of the warrant to the local police department or Sheriff’s office. You will have to pay a fee to do this. A law enforcement officer must serve the warrant to the person you are trying to evict. Generally, after the eviction warrant is served, the person has 72 hours to leave. Only after 72 hours can they be removed by the police. Only a Sheriff, marshal, or constable can carry out the court-ordered Warrant. If you try and force someone from your home yourself, he or she may be able to sue you for a criminal violation. The rules for mobile homes are a little different. If the person is a tenant in a mobile home park, they have 30 days from the time the eviction warrant is served to leave.


How do I evict somebody who shares my lease?

If both you and the person you are trying to evict are on the lease agreement you cannot evict them. If the police charge the other person with a crime, such as harassment or assault, you may be able to receive a criminal Order of Protection. If you are related to the person you are trying to evict (or have a child with them), and they have been abusive towards you, you can seek a Family Court Order of Protection. This will order the person who abused you to stay away from your home. You can also ask your landlord to evict the other tenant.


How do I evict someone I have sublet to?

Evicting someone you have sublet your rental to depends on the agreement you have with your sub-letter. If the person is subletting on a month to month basis, then you must give them one month’s notice. If the person is subletting under a lease agreement, then the agreement ought to set terms for ending the lease. Then you must follow the eviction process described above.


How do I evict my spouse?

It can be very difficult to evict your spouse. Even if your husband or wife does not own the home, they still have a right to live there. If you need your spouse to be removed from your home because he or she is abusive towards you, try to get an Order of Protection.

Note: If you are a domestic violence victim, you can try to get out of your lease agreement so you can leave your abuser. You must ask your landlord to end your lease, pay your landlord what you owe, and notify your co-tenant that you are leaving.

Who else can I evict?

If you invite someone into your home, you cannot use trespass laws to remove them. Licensees (such as a boyfriend or girlfriend) may have some rights to stay in your home. How long they must stay with you to get rights to stay depends on where you live. Be sure to check your local laws before taking any action. If you want them to leave, you must begin an eviction proceeding. Before you begin an eviction process, you must give them a ten day notice to quit.


Who will I have trouble evicting?

In addition to your spouse, there are some other types of people that will be difficult to evict. If you have been in a relationship with someone for a long time they may have acquired some rights to live in your home. If someone has contributed significant money or labor to your home, they may also have gained some rights. Your lawyer will be able to help you identify whether the person you are trying to evict is one of these people.



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(c) Legal Assistance of Western New York, Inc. ®

This article provides general information about this subject. Laws affecting this subject may have changed since this article was written. For specific legal advice about a problem you are having, get the advice of a lawyer.  Receiving this information does not make you a client of our office.

v. Feb 27, 2007, j.hogue


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