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

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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

Answers:

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

Answered 10 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.


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