Can we kick out relative if his name isn’t on mortgage but he’s been staying there for a few years?

UPDATED: Sep 9, 2011

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Can we kick out relative if his name isn’t on mortgage but he’s been staying there for a few years?

My mother owns a home in a flood area. She let her relative live downstairs for the past few years. No lease or rental agreement was ever signed. He gave her money sometimes to help with mortgage. He turned out to be a hoarder. The basement flooded and a lot of his property was damaged. He refuses to clean or remove his stuff from downstairs. He claims he is a renter. We never said he was a renter. He does not pay any utilities or maintain the property. Can we make him leave or does he have any implied rights?

Asked on September 9, 2011 under Real Estate Law, New York


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

The fact is that this relative will be considered to be "tenant" since he at one point was paying a form of rent (i.e. the mortgage payments). This is true whether or not there was a formal written lease. At the very least he will be considered to be a "licensee" (i.e. long term guest). Either way, the lawful way to remove him is to serve him with a notice to quit (typically 30 days). If he still doesn't leave, then your mother will need to file an "unlawful detainer action" (i.e. eviction lawsuit) in court. This can take a month or more.  After that, if he still has not vacated by the specified date, the sheriff will remove him in about a week or so after that (and by physical force if necessary). 

Note:  Until then your mother should engage in no form of "self-help" such as changing the locks or removing this relative's belongings. If she does she may be subject to a suit for unlawful eviction.

To find out the exact law in your jurisdiction, consult directly with an attorney in your area that specializes in landlord-tenant law.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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