The Difficult Prospect of Evicting a Relative

Last Updated: December 10, 2018By Tags: ,

By Daniel Bornstein, Esq.

With the holiday season nearing, the traditional images conjured are families gathering to feast and enjoy quality time together, yet we all know that not all families are so harmonious. When conflicts reach a boiling point with family members living in close quarters, the status quo may no longer be sustainable.

Transitioning relatives out of a property can clearly be a gut-wrenching decision that many families face, and with the rising rate of adult children living with their parents and a growing number of multigenerational households, these tortuous decisions are being made with greater frequency.

One study found that 15 percent of Millennials aged 25 to 35 were living in their parents’ homes. To put that in perspective, that’s five percentage points higher than the previous generation and almost double that of the Boomer and Silent generations, eight percent of whom lived at home in 1981 and 1964, respectively.

With a notoriously high cost of living in the Bay Area, it’s not surprising that the numbers here exceed the national average, with another study estimating that nearly 1 in 3 Millenials are living with their parents. Coupled with the growing number of multigenerational families living under the same roof, the elements are rife for potential conflict.

There may be a feeling of guilt over the prospect of evicting a family member, but this may be the last resort when all else fails. If you are tasked with the thankless but necessary chore of removing someone close, it’s important to understand what you can and cannot do as a landlord.

For example, when tensions run high, you cannot use “self-help” eviction measures such as locking the doors if you want to go to sleep and a family member flops in too late at night. In rent-controlled jurisdictions, the tenant can only be evicted for a limited set of reasons – family drama is not a “just cause” under any rent control ordinance. A common theme we see, then, are owners circumventing eviction rules when the tenant is related, which can make an unfortunate set of circumstances even worse if the dispute is aired out in front of the rent board or in court.

Is the relative a tenant or licensee?

Often, when an owner rents to a relative, it is a casual relationship with no written lease.  Whenever rent exchanges hands, however, a tenancy is commenced.  Accordingly, the relative/tenant is entitled to proper written notice to leave the residence. Barring a written agreement, the tenant is on a month-to-month tenancy, requiring a written notice to move with a date specifying when the tenancy will end. The tenant will be allowed 30 days to move unless the tenant has lived in the rental a year or more, then it is 60 days to vacate. Check California state law (Cal. Civ. Code § 1946 & § 827a) for the exact rules and procedures for how landlords must prepare and serve termination notices.

Eviction is a carefully choreographed process, and now is not the time to be casual. The court will make no distinction between your familial relationship with the tenant, and a non-relative – the rules surrounding every other eviction will apply when transitioning relatives out of a rental unit.

If there is a lease with the tenant, the provisions of the lease must be followed and the process for evicting relatives is the same for evicting any other tenant. This includes written notice and if the tenant does not move out or fix bad behavior – for instance, paying the rent or correcting lease violations – then the landlord can file an unlawful detainer suit, trade word for eviction.

But what if the relative has not paid rent and no tenancy was established? In the eyes of the law, he or she is considered a guest who has worn out their welcome – in legalese terms, the relative is a licensee. A simple analogy is when you invite someone over to dinner, granting a license to your guest and that license lasts until the meal ends or at such time you want the guest to leave.

Forcible Detainers

When no tenancy was ever established, the owner can file a forcible detainer action. This remedy is similar to the more common unlawful detainer action, but it is usually used when the landlord alleges that the tenant has stayed in the unit without his or her permission.

Many of you may recall 30-year old Michael Rotondo, who infamously made the headlines after being evicted from his parents’ house in Upstate New York without paying rent. Take a look at Mr. Rotondo’s story which ended up with a judge giving him the boot and referring the case to an adult protective services agency to investigate possible abuse, neglect or exploitation of his parents.

The case bespeaks alarming abuse of vulnerable property owners who are not ensnarled by the typical fraudsters, but by family members, friends, caregivers and other trusted advisors within their circles. We’ve encountered this all too often at Bornstein Law and take great solace in halting these extended stays, if not averting abuse of the owner.

Before filing the forcible detainer action, the landlord must serve the tenant with a demand that the relative surrender the rental unit within five days from the date of service. To prove his or her case, the landlord must show that the landlord was in actual possession of the apartment at the time of entry and that a forcible entry has occurred, meaning the landlord did not consent to the tenant’s possession. The complaint must also state that the landlord was deprived of possession of the apartment; the landlord is seeking to recover possession; the landlord sent the tenant a demand for possession,  the tenant refused to vacate and the landlord is entitled to possession.

Like its’ sister proceeding for unlawful detainer, a forcible detainer is a summary proceeding and the tenant is afforded the opportunity to file a responsive pleading within five days after being served. If the unwelcome relative chooses to file an answer, he or she has limited defenses.

Potential pitfalls

Once an eviction action has started, the landlord cannot accept a penny more from the tenant because in doing so, the tenancy has begun anew and the landlord forfeits his or her rights to pursue the unlawful detainer. For more surefire ways to lose your case, consult our earlier article.

Try to work it out?

In the end, paying a relative to leave and helping them get onto their feet might be faster and less expensive than trying to evict them. Eviction can be costly, especially if it goes to trial. Family counseling sessions to foster a more harmonious relationship might have their merit and may even be more economical than a protracted battle in court.

Informed advice removed from the emotional fray

One of the most thankless and trying, but necessary duties of a landlord is evicting tenants, but transitioning relatives out of a unit can be exponentially more difficult. While legal counsel is always advisable when rental relationships fail, it is even more important to consult an attorney when relatives are involved because it is rather easy for owners to make rash decisions and understandably have their decisions be clouded by emotion. For informed advice, contact our offices.

More than a practitioner in landlord-tenant law, Daniel Bornstein is the Broker of Record for Bay Property Group, a property management company that protects and optimizes the investments of landlords. He is also renowned for his educational seminars and is called upon as an expert witness in complex real estate litigation matters. To avoid or resolve friction within rental units and cauterize risk, Daniel is happy to dispense informed advice to owners, property managers, and other real estate professionals looking to survive and thrive in today’s challenging and litigious rental housing market. Call 415-409-7611 or email ​

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