Evictions and Restraining orders
Most people have at least one roommate horror story. These situations may be compounded when the roommate is violent. Evicting a roommate is never easy, and the worst part is living with them during the process! In many situations, this can be resolved by combining the use of a restraining order (in legal jargon a protective order) with the eviction action.
There are two classifications of roommates:
- Roommates as co-tenants
- Roommates as tenants renting a room from the owner or primary tenant
Roommates as co-tenants involve a situation where all occupants are of equal power and each are obligated to the landlord. Roommates as tenants creates a situation in which the primary tenant or property owner has the power to evict the tenant because the tenant who is renting a room or a portion of the residence entered an agreement, even if verbal, directly with this landlord. Roommates as tenants may also include tenants that do not pay rent to the roommate or landlord, such as adult children living with parents or significant others/partners.
The first step in any eviction is providing legally sufficient notice, in other words, letting the tenant know that they are in default of the lease agreement, whether written or verbal (i.e., not paying rent, damaging the property or excessive noise, among other potential violations). Depending on the facts of the situation, a landlord may have a right to evict without cause but with proper notice, such as when there is no written lease or a lease is on a month-to-month basis. In other situations, a landlord may only evict for cause, such as failure to pay rent or violation of the lease terms.
In either case, a legally sufficient demand or notice must be delivered and must timeout or expire before the judicial process may begin. The time period in which the notice expires varies depending on the length of the lease or tenancy. These steps must be taken regardless of whether the tenant pays rent or not. If the tenant has been given permission to live on the premises that person has a legal right to remain on the property until such time as that right is revoked through the eviction process.
In roommate situations, it can be very uncomfortable living with a roommate to whom you have delivered a written notice or a summons and complaint, especially if that person has the potential to become violent. The landlord/roommate has choices:
- Move out during the eviction process,
- Tough it out and live with the soon to be evicted roommate
- Obtain a restraining order which would prevent the roommate from occupying the residence, allowing the eviction process to occur and the landlord/roommate to remain in the residence in peace and safety.
When living arrangements with a roommate become dangerous the endangered person may ask the court to issue a restraining order (or protective order) to protect him or her.
Generally, when cause is shown, the court will issue such restraining order immediately as a temporary order. When the temporary order is issued, the court will typically set a future hearing date to determine if the order will be made permanent and to give the restrained person an opportunity to defend him or herself.
Nevertheless, even during the temporary period, a roommate may be forced to leave the residence in order to comply with the order by staying away from and not contacting the protected individual. The order will contain specific instructions as to what the restrained person may not do, likely including language such as “respondent must not come within 200 yards of the protected party” or “respondent must not bother or harass protected party.”
When a Restraining order effectively forces one party to leave the residence, this creates an opportunity to obtain an eviction, but does not create an eviction action in itself. The landlord will need to take the proper steps to create the eviction action in addition to obtaining the Restraining order, including providing proper notice as the restraining order does not constitute such notice.
The need for a restraining order may correspond to a violation of the lease agreement that would enable to the landlord to pursue eviction. Generally, lease agreements include provisions prohibiting excessive noise, nuisances, harassment, or illegal activity on the property. Landlords may also terminate a lease or tenancy if the tenant committed a violent act using a weapon on or off the property or is engaged in illegal drug activity.
The restraining order also provides the opportunity for a cool-down period, in which both parties have the opportunity to reflect on the situation and may make for a less hostile move-out period. Additionally, temporary restraining orders do not typically show up on criminal screenings for employment purposes unless there is a corresponding conviction for a crime committed. Therefore, there are very few long-term negative impacts on the tenant, if any, if that is of concern to the roommate/landlord, as it may be in parent/child situations or situations in which the roommate/landlord hopes to receive any type of spousal/palimony or child support from the tenant in the future.
Evictions and restraining orders are issues that, many times, are processed simultaneously. At first blush, the process may seem simple, but our experience shows that landlords acting on their own behalf to obtain evictions and restraining orders often times fail. Nothing can be worse than having to live with an angry roommate through an unsuccessful eviction, twice, because of a technical flaw in the process. Most landlords fail to recognize that the tenant who is being evicted has rights too and the court will lookout for that tenant’s rights during the eviction process. Never step outside the requirements of the law or cut corners to evict a tenant or roommate faster.
Our roommate eviction attorneys can professionally handle your eviction and/or restraining order, ensuring it is done properly the first time and with the least amount of stress on you. Contact us for a free, no obligation consultation at (303) 688-0944.