1. Free Legal Help, Legal Forms and Lawyers. TheLaw.com has been providing free legal assistance online since 1995. Our most popular destinations for legal help are below. It only takes a minute to join our legal community!

    Dismiss Notice

Subleasing tenant not on lease refusing to leave

Discussion in 'Rental Agreements & Subleases' started by ehships11, Oct 11, 2016.

  1. ehships11

    ehships11 Law Topic Starter New Member

    Messages:
    5
    Likes Received:
    0
    Trophy Points:
    1
    Jurisdiction:
    Georgia
    I have a roommate who moved into my apartment. I am the only name on the lease. He is paying month to month rent, but has been late for the 2 months he has lived there. I have given him a 30 day notice to vacate but is now refusing saying he needs the legal documents and that I have no right to evict him. He is not on the apartment lease. I read that if a person is subleasing month to month and is not on the lease, then I technically need no legal reason to evict him. Need some help on this issue please!
     
  2. army judge

    army judge Super Moderator

    Messages:
    32,622
    Likes Received:
    5,005
    Trophy Points:
    113

    You are required to evict him through the courts if he refuses to leave voluntarily.

    You may be unable to evict him.
    You can try.
    You may be told your landlord must bring the eviction action.
    The court clerk can instruct you when you try to file the eviction papers.
     
  3. ehships11

    ehships11 Law Topic Starter New Member

    Messages:
    5
    Likes Received:
    0
    Trophy Points:
    1
    We have a written agreement stating that he is subleasing and that I need to give a 30 day notice whenever I need him to vacate. So, does that help at all? Also, if I get the landlord to send the notice he then has to leave correct?
     
  4. army judge

    army judge Super Moderator

    Messages:
    32,622
    Likes Received:
    5,005
    Trophy Points:
    113

    Your notice is simply a request, despite what you believe it to be.
    Most deadbeats ignore a notice.
    If he does, your remedy is to go to court.
    That process can take anywhere from six to twelve weeks.
    In some cases the LL will evict you both, because most leases don't allow tenants to sublet.

    When you get this straightened out, don't ever sublet again.

    Most people who rent rooms have baggage, troubling baggage.
    Many are deadbeats, or worse.
     
  5. ehships11

    ehships11 Law Topic Starter New Member

    Messages:
    5
    Likes Received:
    0
    Trophy Points:
    1
  6. Gail_in_Georgia

    Gail_in_Georgia Moderator

    Messages:
    2,632
    Likes Received:
    346
    Trophy Points:
    83

    And in Georgia it's a 60 day notice on the part of the landlord (you're his landlord if you're collecting rent from him) to terminate a month to month tenancy.

    And yes; if your lease does not allow subletting or moving someone else in without approval from the landlord you have breached your lease and may find yourself at the end of an eviction.

    Gail
     
  7. ehships11

    ehships11 Law Topic Starter New Member

    Messages:
    5
    Likes Received:
    0
    Trophy Points:
    1
    My landlord allowed the sublease. There was also a written contract between he and I that stated only 30 days notice was required.
     
  8. shrinkmaster

    shrinkmaster Well-Known Member

    Messages:
    3,734
    Likes Received:
    292
    Trophy Points:
    83
    Who does roommate pay rent to you or Landlord?
     
  9. ehships11

    ehships11 Law Topic Starter New Member

    Messages:
    5
    Likes Received:
    0
    Trophy Points:
    1
  10. Michael Wechsler

    Michael Wechsler Administrator Staff Member

    Messages:
    9,136
    Likes Received:
    603
    Trophy Points:
    113

    You have a legal agreement. It is called an "oral agreement" and it is just as enforceable as a written agreement.

    You appear to have a month to month lease. The legal reason you have to evict him is called "nonpayment of rent" or "holdover" - the former is for not paying rent and the latter is because you have a right not to renew the month to month lease. You need to send written notice, as you have, and then follow the statutory period for filing for eviction. See @Gail_in_Georgia 's post.

    All this said, if you don't have a security deposit you may be throwing away good money but it's the way to proceed to an eviction. Sadly @army judge may be right as even expedited proceedings may take a couple of weeks or more than a month. And unless this person has assets of some kind (or a known steady job), you're going to have a difficult time collecting money. The excuse he's given leaves me with the impression that @army judge is right and has him pegged for a deadbeat. In the future, don't be a sublessor or a landlord unless you understand how to do it right and protect yourself. Now you're beginning to know. Good luck.
     
  11. army judge

    army judge Super Moderator

    Messages:
    32,622
    Likes Received:
    5,005
    Trophy Points:
    113

  12. Michael Wechsler

    Michael Wechsler Administrator Staff Member

    Messages:
    9,136
    Likes Received:
    603
    Trophy Points:
    113

    Agreed - assuming that such would fall under the statute of frauds and be unenforceable. Unless I read too quickly, I think the month to month agreement should be enforceable.
     
  13. adjusterjack

    adjusterjack Super Moderator

    Messages:
    8,260
    Likes Received:
    2,304
    Trophy Points:
    113

    Statutes of frauds generally don't apply to leases and rental agreements because leases and rental agreements are governed by specific landlord tenant statutes.

    Here are some excerpts from the GA landlord tenant statutes.

    44-7-2(a) Contracts creating the relationship of landlord and tenant for any time not exceeding one year may be by parol.

    44-7-6 Where no time is specified for the termination of a tenancy, the law construes it to be a tenancy at will.

    44-7-7 Sixty days' notice from the landlord or 30 days' notice from the tenant is necessary to terminate a tenancy at will.

    However, non-payment of rent is a different story but it's a bit involved so I'm just providing a link to the GA statute that addresses Dispossessory Proceedings:

    2015 Georgia Code :: Title 44 - PROPERTY :: Chapter 7 - LANDLORD AND TENANT :: Article 3 - DISPOSSESSORY PROCEEDINGS
     
  14. army judge

    army judge Super Moderator

    Messages:
    32,622
    Likes Received:
    5,005
    Trophy Points:
    113

    My old pal from many years ago, the SOF compliments state law, because real estate related transaction (leases and mortgages specifically) must be reduced to writing.

    The law doesn't recognize oral agreements for any real estate transaction, hence statutory enactments which address leases when the prior written lease has expired and the tenant does not vacate the premises.

    Statute of Frauds
     
  15. Michael Wechsler

    Michael Wechsler Administrator Staff Member

    Messages:
    9,136
    Likes Received:
    603
    Trophy Points:
    113

    But in this case there is full performance under the agreement and even partial performance acts as an exception to the statute of frauds up to the amount performed. Perhaps I should have made this clear as this would be an enforceable oral agreement as it has been fully performed by the lessor.
     
  16. army judge

    army judge Super Moderator

    Messages:
    32,622
    Likes Received:
    5,005
    Trophy Points:
    113

    I agree.
    I was simply trying to point out, rather obtusely it appears, that two parties can't create an oral agreement to lease an apartment.

    They could of course enter into the "agreement", but not because it was crafted orally.
    The lease would become a valid lease because of the various state statues.

    A month passes, and the tent disappears.
    The LL would find her remedy in a TX JP or Municipal Court.
    The remedy of course would be to obtain possession (legally) of his property.

    Without statutory authority behind the oral lease, where would the remedy for disputes lie?

    Take TX, for illustrative purposes:

    Landlord_Tenant (Texas)

    The agreement stands because of state law.
    State law would then direct termination, notice, etc...

    State laws across this country validate those unwritten leases, because of my old nemesis, The Statue of Frauds.
     

Share This Page