Legal Question in Real Estate Law in California

Sub-Tenant Eviction

I have a month-to-month lease for a condo and I share it with a roommate. She is NOT on the lease or any other papers, as a roommate or co-tenant. I have given her a 60 day notice and she is refusing to leave. She pays her half of the rent to my landlord direct, but again, she is not on any paper work of any sorts, that has to do with the place of residence or her living situation. What legal rights do I have to have her leave, and does it matter that she pays her half of the rent directly to the landlord? If I do have the right to have her leave, do I have to go through the eviction process with her?

Asked on 8/14/00, 11:03 pm

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Sub-Tenant Eviction

The first thing I would do is review those lease papers again for anything dealing with subleasing or cotenants.

The issue here, as you seem to recognize, is whether your roommate is a contenant or subtenant. All the facts you gave point to subtenant except for the separate payment of rent to the landlord, which points to cotenant.

Has your roommate shared the place since the outset of your tenancy? If yes, this would point to cotenancy.

The top line of the written lease, where it says, "hereby leases and demises unto" (or words to that effect) is probably controlling. Does your name alone appear here?

The whole area of additional occupants of rented property raises numerous legal problems and courts may look to unwritten evidence to determine what's really going on, but written agreements usually receive substantially more weight.

If the roommate is your subtenant you do have to go through the eviction process, and giving notice as you have done is step one.

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Answered on 9/18/00, 4:18 pm

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