What legal rights does a person have who lives in the house but does not own it?

UPDATED: Oct 1, 2022

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What legal rights does a person have who lives in the house but does not own it?

My dad recently died. His girlfriend lived in his house with him. My dad owned the house. I am now the surrogate of my dad’s house/affairs. His instructions were to sell the house. She is aware of that. I hope to put the house on the market no later than 6 months from now. Do I need legal documents for his girlfriend in order for her to stay in the house until I sell it? Grief and desperation can cause people to act out of character. His girlfriend needs to find a place to live. What legal rights does she have, if any? Should I get like a landlord tenant agreement? I do not want any problems from her when it is time put the house on the market.

Asked on January 16, 2018 under Estate Planning, New Jersey


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

1) Do NOT enter into a landlord-tenant relationship with her unless you want to be in a position where it can take several months or longer, and compliance with very "picky" rules, to remove (evict) her if she ends up staying longer than agreed. To oversimplify, the vast majority of residential tenancies in New Jersey, including of single family homes, are covered by the "Anti-Eviction Act" which essentially creates a "lifetime tenancy": the right to live there as long as the tenant obeys the lease (if there is a written lease), pays the rent, and doesn't break up the place or do certain other obviously bad things. While there is a provision allowing eviction when you sell the house IF the contract of sale requires it be delivered without a tenant, you first have to get a contract of sale requiring that, *then* provide (if I recall correctly) two-months notice, *then* file an eviction case in court if she still doesn't leave, which case can take another 2 months plus from start to finish *and* still gives her the opportunity to seek a "hardship stay" and delay eviction for another up to 6 months. Having a tenant and having to go through that process can greatly affect closing.
2) If you are personal representative for the estate, you have the right to let her stay there and don't need a written agreement to have her do so: so just let her stay as long as you like. Don't collect rent, so if you let her stay, it is on the estate's dime: if you collect rent, you've turned her into a tenant (see above).
3) If and when you want her out for any reason (assuming you just let her stay and did not make her a tenant)--she is not cooperating with staging or marketing, she is damaging the premises, it is too costly to let her stay, you find her toxic, etc.--give her written notice that she has to go in, say, 10 or 15 business days. Send the notice some way you can prove delivery. If she doesn't go then, hire a landlord-tenant attorney to bring an "ejectment" (eviction for non-tenants) action in Special Civil court in your county; the attorney (landlord-tenant attorneys handle ejectment as well as eviction) can bring the action via an "Order to Show Cause" to get into court in about 10 days. The matter can then be resolved quickly and an order that she has to leave issued to the sheriff to enforce. There is no hardship stay available for non-tenants (guests; anyone you let stay in a home who is not a tenant is a guest). Non-tenants who are not on the home's title/deed have no right to remain once the person controlling the property wants them out--there is no defense to an action for ejectment.

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 AttorneyPages.com 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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