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3 Day pay or quit/trasspassing

Discussion in 'Other Residential Landlord & Tenant Issues' started by ctanke, Jan 4, 2010.

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  1. mightymoose

    mightymoose Moderator

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    Legally locked out? No. In fact, if you are locked out, there would be nothing wrong with you breaking a window to get back in (you would just have to pay for the damage/repair).
    Whether it is the landlord/owner/bank, you still must be evicted through the same process before you can be legally forced out.
    Lockouts, power/water shutoffs, etc are illegal and you can take civil action against anyone that does it. It is also a criminal offense that you can report to the police.

    There are many foreclosed homes with families still living in them. It is a problem for the bank or the new owner to deal with.... legally.
     
    Last edited: Jan 5, 2010
  2. ctanke

    ctanke Law Topic Starter New Member

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    Thank you so much for all of your help with this. The infomation I found on the internet lead me to believe I couldn't be locked out, but I wasn't 100% sure. I have cats and was concerned that they would be lock inside with no way to get to them. I'm still trying to get the water turned back on and hopefully it wont be a problem. I really do appreciate all of your time and help with this. You have made these very scarey and confusing issues easier to understand so I can handle things correctly!!:D
     
  3. CdwJava

    CdwJava Moderator

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    I again reiterate my suggestion to these folks that they find another place to live. If the landlords do not know they exist, it is very possible that the police might get involved and charges could be filed. One does not have a right to simply occupy a home for which they have no lease or contractual relationship. If booted out any claim for damages would be against the former tenants who allowed them to stay (likely outside the confines of the contract).

    A tenant has no legal right to make a legally binding commitment for the landlord. Unless specifically granted this right to sublet in the lease, the tenant is the legal resident, not the person who sublets it.

    It is not entirely unlikely that the landlord might insist upon a citizen's arrest for trespassing. Even if the officer(s) are not inclined to do so on their own, they would be legally required in CA to at least issue a citation to the occupant if there exists some probable cause to believe the persons are there unlawfully. While the police would likely try to mediate the matter to give the occupants a few days or weeks to get out, there is no guarantee that such negotiation would be successful.

    Ctanke, I would suggest you find another place to live before this gets even more complex.
     
  4. mightymoose

    mightymoose Moderator

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    Oh yes, you certainly can be locked out... it is just not legal for them to do. It still happens all the time.
     
  5. MorgansDaddy

    MorgansDaddy New Member

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    If the home is sold or the lender forecloses on the property, federal law(I believe effective as of June 2nd, 2009) states that you must be giving a 90 day eviction notice. If you are evicted prior to a sale or foreclosure, then the time frame would depend on the laws specific to your state and the court who issues the eviction. About a month ago I learned my landlord hasn't been making his mortgage payments and now the property we have paid rent for every month (and still continue to do so) is up for short sale, and could be put into foreclosure. I spoke to my landlord about two weeks ago and he agreed to let us out, however has yet to sign and return the written agreement I sent him the same day(Thus, we are stuck for now). So being in a foreclosure situation myself, I feel your pain. Morale of the story is to find the owner as soon as possible and try to reach a solution, and I believe your problems will then end. I would be prepared to pay any back rent though being as money talks, and that could lead to a very quick solution. In the mean time, I would be looking for a new home quickly. Also, the fact that the property is in foreclosure does not give the tenant the right to skip on the rent, saying he would accept rent and let you stay, but if you receive a 90 day eviction because of foreclosure, then you are no longer required to pay a dime during that period. Just locate the owner and/or move as quickly as possible.
     
  6. ctanke

    ctanke Law Topic Starter New Member

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    I completely agree that we need to get out of there as soon as possible and am trying very hard to do so. Now that I know who the owner is, I'm going to try to work something out with them that allows us to pay them rent until we find a new place. The police have been involved with this for a little while now and they are fully aware of what is going on, so hopefully we wont get locked out before we can work things out with the owner.
     
  7. mightymoose

    mightymoose Moderator

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    Actually in this case, since the person you paid your rent to is gone, you are essentially rent free at this point.... but do be putting money aside in case you do end up in a jam later and are ordered to pay for the time you are there. You already know you need to move as soon as possible... the sooner you move out the less likely you will have to pay any more for the place you are currently at.
    Once you are contacted by the actual owner you will probably have to work out a temporary plan and be on the hook for more payments.

    Also- don't worry about the police. They won't force you out until a judge signs off on an eviction order, and you will have plenty of notice before that happens.
     
  8. CdwJava

    CdwJava Moderator

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    Moose, don't count on the police having to wait for some form of court order. We do not know the details here, and there are a number of scenarios where the police could intercede in the situation and the occupants could be treated as trespassers rather than tenants. It happens with some frequency. Whether or not the police should intervene is debatable, but there are situations where it can and has occurred.
     
  9. mightymoose

    mightymoose Moderator

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    No- they came into the residence lawfully and even paid rent a few times before they ran in to trouble. It isn't trespassing by any stretch. This absolutely requires an eviction.
     
  10. CdwJava

    CdwJava Moderator

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    No, they did not necessarily enter into a lawful rental agreement - certainly not binding on the landlord. They were allowed in by a tenant who may have had no lawful authority to allow it. I agree that an eviction might be the best way to go, but there can be details present here that would very easily allow for them to be removed by the owner of the property. Like I said, it happens with some frequency, and this is a dodge often attempted in larger jurisdictions. All because one has been squatting in a place for a time does not automatically grant them the rights of a tenant. Under the circumstances, the police would be well advised to wait for an eviction, but if the owner insisted upon a citizen's arrest for trespassing, and there existed probable cause to believe this, then the police would be legally required to act.

    A lot depends on how the legal tenants vacated the property. Did they abandon it? Was their lease up? Were they evicted? By definition, the OP is not a "tenant" he is an "occupant," and thus not subject to all the same levels of recourse as the tenant. An eviction is geared to remove the "tenant." As the occupant is not a tenant, he cannot even be named on the eviction suit. If the original tenants have vacated the property and their lease has expired then the current occupants have no right to possession.

    There may also be local regulations governing the process. But, it is not true to say that the police can NOT act. Without all the facts and details, such a blanket statement just is not true. Likewise, evicting someone who may not even be legally defined as a "tenant" is not possible.
     
  11. mightymoose

    mightymoose Moderator

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    Having a lawful rental agreement is quite different than being in the residence lawfully. Whether or not the tenant that allowed them in had authority is an issue between the owner and that tenant.
    This particular tenant moved in believing the person that allowed them in had authority, later finding out differently, but in the mean time establishing residency. They paid rent to live there 3-4 times (I believe) before things fell apart and the other tenants that allowed them in (and collected their rent) moved out.
    While they may not have full tenant rights, they still must be evicted to be forced out. The owner would be open to civil liabilities if he insisted on a false arrest, and the police would most certainly talk him out of it if he insisted. The owner could certainly do it, but at his own peril.
    As for being a tenant... the OP here was actually a subtenant and really does have the same protections as a tenant does. The subtenant is responsible to the tenant and the tenant is responsible to the landlord/owner. Our problem here is that the tenant left, leaving a subtenant behind who has no contact with the landlord/owner. This is no fault of the subtenant or the owner.
    Their issue is a civil one that has to be settled through the eviction process IF the OP doesn't find somewhere else to go before the owner orders him out.
    Anyway- as for status as a tenant and right to possession of the property, that is for a judge to decide, not a police officer.
    There really is no criminal act here for the police to address. They have no business in the matter other than to keep the peace or to evict on a judge's order.
     
  12. CdwJava

    CdwJava Moderator

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    Apparently you have not had to deal with this issue all that often. It is not as black and white as you might want to think it is, Moose. While I tend to agree with you that a court order would be nice,the facts might dictate otherwise, and a private person's arrest might force action by the agency.

    I have some experience with this issue as part of a sheriff's department some years back and have had to deal with numerous similar issues in recent months and years. While you may not like the idea, the occupant likely has no lawful right to be in the residence. As such, eviction cannot be initiated against him. Doing so would confer the rights of a tenant on someone who is NOT a legal "tenant" under the law. If the REAL tenant just walked away, then the owner would likely have to begin the eviction process against the former tenant and identify the unnamed occupants in the process of the writ. If the prior tenant's lease expired and they left, then the OP's (occupant's) position is very tenuous.

    Like I said, more details would need to be determined, but he could be seen as nothing more than a squatter. And if arrested by the landlord, any civil liability would lay at the feet of the landlord.

    So, he needs to get out lest things become more complicated than they already are.
     
  13. mightymoose

    mightymoose Moderator

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    Well still... he is technically a subtenant. The legality of it is for a court to decide, not the police. The police wouldn't do anything more than issue a citation, and that still wouldn't get him out of the house.
    It is not a trespass though, by any means.
    Had they occupied this residence without the authorization of the prior tenant and not been paying rent (occupied an empty residence without permission), then it would be different. That would easily fall into PC 602 (o) if the police were to get involved at the request of the owner. The legal occupant of the residence did allow them in though... and that alone negates any trespassing charges.
     
  14. CdwJava

    CdwJava Moderator

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    Trespassing requires notice. The occupants have no legally binding contract with the landlord. The landlord could, theoretically, give them notice they are trespassing and need to get out. That can be sufficient for notice to establish the probable cause for PC 602. Whether the police would choose to issue a citation or make an arrest is debatable. In theory, since the offense might still continue, a custodial arrest could be appropriate.

    You are also assuming that the leased tenant is STILL a legal tenant of the property. This is information we do not know. Were they evicted? Did they abandon the property? Was the lease up? The answer to those questions could well change the situation. But, a tenant can NOT legally bind a property owner to a contract to which the owners were not a party. The OP/occupant can take that up in civil court against the tenants that led them on, but the owner should not be held to an unlawful contract any more than my rental car can be leased or sold to a third party and they can claim ownership of it.

    Remember, by definition, the occupant is NOT a tenant and is thus not able to be removed via the normal eviction process. So, the landlord would have to proceed against the previous tenant. But, if the previous tenant has abandoned the property or has otherwise legally surrendered possession of it, then no eviction may be possible (again, there are exceptions to this and a lot depends on the detaols - which we do not know).

    All of this is theory and contingent upon details which we do not know and can only surmise. In the short run, I agree with you that law enforcement is not likely to get involved unless they have a clear cut case or are forced to get involved. But, the fact remains that under the right scenario set of circumstances, the OP CAN be in jeopardy of criminal action.
     
  15. mightymoose

    mightymoose Moderator

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    But they did! Their landlord was the other tenant, a legal resident, who allowed them in. The actual owner, apparently totally unaware of the new subtenant, really does have to treat them as subtenants whether he authorized it or not. Any damages the owner incurs should be recoverable from the other tenant who allowed the subtenant in, probably in violation of the lease.
     
  16. mightymoose

    mightymoose Moderator

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    Nooo.... this would get them in a jam. A cite and release will keep the police off the hook, but an arrest that forces them out will amount to an illegal eviction and maybe even a 4th Amendment violation. An arrest for that purpose would very possibly be viewed as an unlawful seizure (the property). That is why the legality of it all needs to be decided by a court and a lawful eviction order needs to be issued.
     
  17. mightymoose

    mightymoose Moderator

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    Does the departure of the tenant automatically void the legal access to the residence of the subtenant? I doubt it.
     
  18. mightymoose

    mightymoose Moderator

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    But the occupant is, by definition, a subtenant- who really does have all the same rights as a tenant.
     
  19. CdwJava

    CdwJava Moderator

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    Again, not enough details. Subletting is generally specifically prohibited by most lease contracts. If the landlords were dumb enough not to include this prohibition in the lease contract, then you are correct. But, if the tenants were not permitted to sublet (and many inexperienced landlords often fail to have inclusive contracts) then the liability falls back on the tenant who made the agreement illegally.

    Now, if the landlords were aware that these occupants were in the residence and failed to act on it, then a new issue arises. But, without further details you cannot make a blanket statement stating that the occupants are legally residents and that the police cannot be compelled to act. The occupant MIGHT be considered a tenant under the right circumstances, and the police MIGHT be compelled to act under the right circumstances as well. Without further information, no determination can be made. We simply do not have enough info to make a definitive judgment on the status or potential liability of the OP.

    Mediation is always the preferred route, but it does not always work that way.
     

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