Tenant not on lease, not paying, are they trespassing?

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Tenant not on lease, not paying, are they trespassing?

Russell Gronsky
Specialist · Baltimore, MD · Member since 2016 · 384 posts · 318 votes

Another CA sob story but after searching the forums, I find situations not exactly like mine so here goes.

This starts out same as other stories, I had a tenant on a lease, she moved out and left her daughter and her husband in my apartment. Turns out, they have been living illegally in my rental for a few months. 

Here is where it twists a little different than other stories I found in search: They have not been paying rent and now that the tenant who was on the lease moved out, they told me to pound sand and won't pay anything until they get evicted.

With the current corona situation, who knows when evictions will pick back up again.

So my question is this, since they never paid rent, never been on a lease and won't pay rent going forward, can I have them removed immediately as trespassers?

Thanks in advance.

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Todd Powell
Rental Property Investor · Corvallis, OR · Member since 2018 · 840 posts · 1k+ votes
6y

@Russell Gronsky. Hire 10 guys, show up and say they are all guests who will also hang out rent free. Make sure they are the scary type. What recourse will they have ? And tell them they have 12 hours to vacate. I cannot tolerate your story

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  • Stone Saathoff
    Investor · San Antonio, TX · Member since 2019 · 576 posts · 307 votes
    6y

    Typically I would imagine California has some type of law preventing it, but if there is truly no agreement between the two of you, no lease, nothing verbal, and they haven't paid anything, I don't see how the law could reasonably come to a conclusion that there was an agreement, it's obvious there isn't. I'm sure you're local police station could give you a solid answer on that right away, it sounds like they are trespassing though.

    3Reply
  • Andrew B.
    Rockaway, NJ · Member since 2016 · 2k+ posts · 2k+ votes
    6y

    Once they have started living there, they have established residency and are 100% not trespassing, they are tenants. Your knowledge of local laws seems to be inadequate, given this question. I HIGHLY suggest you spend some time researching your local laws, especially when you live in the tenant friendly state of CA. Right now, you should get in a lawyers office. Please do not try to evict on your own or you will end up selling the property to someone to avoid going bankrupt in 2 years. From the stories I’ve heard, you don’t wanna **** up an eviction in CA

    5Reply
  • Eric L.
    Rental Property Investor · Royersford, PA · Member since 2018 · 25 posts · 19 votes
    6y

    @Russell Gronsky - you may need to evict the squatters with an ejectment or unlawful detainer; confirm with your lawyer.

    Is your tenant’s lease still active? If so she’s still on the hook for rent payments.

    Leverage your previous tenant to get the POS squatters out or to understand their situation so that you can negotiate cash for keys or at least get their full names for the eviction process. Good luck.

    6Reply
  • Chris London
    Property Manager · Raleigh/Durham NC · Member since 2015 · 210 posts · 293 votes
    6y

    The 1st sentence of Andrew B's post above seems to answers the question. Not sure why he was so snarky after that. I suggest you start by contacting a real estate attorney and start the eviction process so that your claim is in line with the thousands of others when the courts open back up.

    You should also look into the mortgage forbearance options that you have that seem to allow you to push up to 90 days of mortgage payments to possibly the end of the fixed term of the note.

    Good luck! -C

    1Reply
  • Lynnette E.
    Rental Property Investor · TN · Member since 2018 · 2k+ posts · 2k+ votes
    6y

    Is the lease with the old tenant still active?  Not just within the one year lease, even if after that year and converted to a month  to month?  Did she give formal notice in writing or however your lease required that she was leaving?  Did you inspect the property and tell her she left some family members?  Furniture?  Filth?  Did she get her deposit back?  

    If she is not formally processed out of the property, she is still on the hook for the rent.  Find her and tell her and offer HER cash for keys if she gets the property empty of her stuff-including people.  And let her know that since you have not received the property back from her, you will evict her and her rifraf once the courts are open for eviction and it will go on all their records, and you will haunt her for the rest of her life keeping the unpaid rent as a collection on her credit report until she pays it.  You will need to formally evict her to keep the record straight if she has not formally been processed out of the house.  

    And with CA you definitely want to use an experienced attorney because some of these folks are pros at what they do, and the mom may have rented just to set it up for the kids to have a house.

    4Reply
  • Todd Powell
    Rental Property Investor · Corvallis, OR · Member since 2018 · 840 posts · 1k+ votes
    6y

    @Russell Gronsky. Hire 10 guys, show up and say they are all guests who will also hang out rent free. Make sure they are the scary type. What recourse will they have ? And tell them they have 12 hours to vacate. I cannot tolerate your story

    7Reply
  • Jonathan W.
    Los Angeles, CA · Member since 2019 · 512 posts · 301 votes
    6y

    @Russell Gronsky she moved out? How did the move out process work? Did she give you notice? Did she have a deposit? Did you return the deposit?! I’m following to learn but I’m wondering how she left and they got stuck. It sounds terrible dude and I hope it works out!

    0Reply
  • Tony George
    Rental Property Investor · Houston, TX · Member since 2015 · 19 posts · 8 votes
    6y

    @Todd Powell

    12 hours is a lot of time for them to destroy the property.

    0Reply
  • Tony George
    Rental Property Investor · Houston, TX · Member since 2015 · 19 posts · 8 votes
    6y

    @Russell Gronsky

    I’m still new to this, but it sounds like if the mom didn’t go through the proper steps to move out then she’s still in the hook for the rent.

    Although I like the idea of showing up with scary guys, you might have to offer cash for keys in order to preserve what they haven’t screwed up already by squatting there.

    Good luck, please keep us updated on the outcome.

    0Reply
  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    6y

    +1 for Todd's recommendation...though I would never actually advocate doing something outside the law.

    Get creative, or get in line with an attorney so you can sort this out as soon as the moratorium is lifted.

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    3Reply
  • Todd Powell
    Rental Property Investor · Corvallis, OR · Member since 2018 · 840 posts · 1k+ votes
    6y

    @Tony George not with those 10 scary guys on site.

    0Reply
  • Todd Powell
    Rental Property Investor · Corvallis, OR · Member since 2018 · 840 posts · 1k+ votes
    6y

    @Nathan G. True, mostly fiction here, but cant stand when leaches take over. It would be fun to see the whites of their eyes when these boys pulled up. Huh

    1Reply
  • Daryl Luc
    Member since 2019 · 226 posts · 107 votes
    6y

    Ejection is NOT eviction.  You won't be at the back of the line unless your lawyer is a noob.  I'm not aware of any state that doesn't see squatters as outright criminals.  this is not a protected class, virus or no virus.

    1Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes
    6y

    @Russell Gronsky by legal definition in California, they are not trespassers because they didn't force to gain entry. They have a key to the property and all their belongings inside. If you call the police, most likely the police will not remove them and will refer it as a civil matter (eviction). In a case like this I would expect the occupants to lie to the police and tell them they are tenants. They will say they can't find their lease or that it was a verbal lease. Police have to step back in that case.

    My understanding is the California executive order delays enforcement of eviction orders and blocks new orders due to non-payment. My understanding is you can still serve notice and file for eviction. If it is not related to non-payment, they may still proceed and if not, it just waits on hold. (talk to a local attorney about this)

    I would consider serving the previous tenant with a 3-day notice. Have her served at her new address and include on the notice "and unknown occupants". The purpose of including unknown occupants is so when an eviction is awarded, you can have anyone inside the property forceably removed. 

    Of course the old tenant is going to respond that she is no longer occupying the property. This may be a way to substantiate that the occupants are not tenants. The court may be willing to hear this case if presented as a matter of squatters / hold over versus not non-payment related.

    Your best bet may be going after mom legally. When threatened with eviction and paying rent for her loser child, she may tell them to get out. Mom gave them the key and let them in, so they are moms guests and therefore mom is still occupying the property. Mom needs to get her guests and all the belongings out of the property.

    I know others suggested using illegal tactics to get these people out. Before doing that, weigh the potential ramifications to you personally. Although the idea of ten thugs sounds like fair justice, it could also be seen as assault (threat of harm). I am all for creative situations, but I don't want you to end up in deeper trouble here.

    5Reply
  • Daryl Luc
    Member since 2019 · 226 posts · 107 votes
    6y
    Joe, I think you'll find that your definition in your advice is wrong.  Squatters in California law are considered criminal trespassers regardless of how they enter a building and subsequently occupy it...not tenants. There are steps that they could take making it more difficult to remove them and your idea of involving the person who signed the lease is a clearly valid step to take for the reasons you gave.  In addition, California requires a three day quit to be served on the squatters before filing the Unlawful Detainer. I would do both of these steps yesterday! The detainer filing will cause a snowball of grief on them and unless they can prove to a judges satisfaction that they have rights to adverse possession, they may be arrested for criminal trespassing (penal code 602 PC) as they are removed.  A misdemeanor capable of 6 months county and $1K fine, plus lawyer fees,costs, etc. each individual.  Usually much better to share that before bringing Louisville Sluggers to the party.
    2Reply
  • Matthew Irish-JonesBusiness Member
    Real Estate Agent · Buffalo, NY · Member since 2017 · 2k+ posts · 2k+ votes
    6y

    @Russell Gronsky. You need to look into your states squatters rights. You also need to find out if they are paying for utilities. In my state a utility bill in their name makes them a tenant.

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  • Matthew Irish-JonesBusiness Member
    Real Estate Agent · Buffalo, NY · Member since 2017 · 2k+ posts · 2k+ votes
    6y

    @Daryl Luc. New York State has squatters rights

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  • Daryl Luc
    Member since 2019 · 226 posts · 107 votes
    6y
    All states have squatter's rights.  They also have laws to remove squatters that are guilty of adverse possession.  Some squatters are not violating the adverse possession law, most are. If the owner doesn't want the squatter there, and didn't give permission, it's an adverse possession.  A bill with your name on it establishes residence and an attempt to prove permission. It's not a guarantee that you will get to live there. Your point?
    0Reply
  • Michelle Fenn
    Real Estate Agent · Cleveland OH · Member since 2015 · 213 posts · 275 votes
    6y

    We have a similar situation going on. Responsible Sis rented the property,  but included her irresponsible sister on the lease as an occupant.  Responsible Sis moved out.  We warned her that this was a mistake, since she did not terminate the lease she would be on the hook if Sis & Mom screwed up.   Screw up they did.   We have recieved multiple complaints from neighbors about garbage in the yard, junk cars in the drive and possibly an illegal daycare.   Boss planned to start eviction proceedings as "no color of title" but I pointed out that the sister in question is listed as an occupant.  I have delivered a 30 day termination of tenancy, no possibility of eviction in Ohio right now,  so we are using is as leverage to negotiate rent payments until the eviction process is allowed again.  My next plan is to place the home for sale.   As it is a single family home, an owner occupant will not be bound by the month to month lease agreement.

    Even if I am unable to sell it, I can make it uncomfortable enough they may actually move. 

    0Reply
  • Tony George
    Rental Property Investor · Houston, TX · Member since 2015 · 19 posts · 8 votes
    6y

    @Todd Powell taking the 10 scary guys was going to be my first suggestion, but I wanted to try and offer the legal approach.

    But since you mentioned it, take the 10 cats over there and inform them “you have 2 hours to get your $#!+ out of my house!!!”

    1Reply
  • Robert Schumacher
    Investor · Campbell, CA · Member since 2016 · 76 posts · 91 votes
    6y

    @Russell Gronsky

    In the state of CA ... they are tenants after living there for 14 days. I would suggest having your attorney serve a 3 day cure to remove anyone not listed on the lease from the premise. You can still evict for lease violations (except nonpayment of rent) right now. What county is your property in?

    1Reply
  • Joe SplitrockPro Member
    Moderator
    Rental Property Investor · Sioux Falls, SD · Member since 2015 · 9k+ posts · 18k+ votes
    6y
    Originally posted by @Daryl Luc:
    Joe, I think you'll find that your definition in your advice is wrong.  Squatters in California law are considered criminal trespassers regardless of how they enter a building and subsequently occupy it...not tenants. There are steps that they could take making it more difficult to remove them and your idea of involving the person who signed the lease is a clearly valid step to take for the reasons you gave.  In addition, California requires a three day quit to be served on the squatters before filing the Unlawful Detainer. I would do both of these steps yesterday! The detainer filing will cause a snowball of grief on them and unless they can prove to a judges satisfaction that they have rights to adverse possession, they may be arrested for criminal trespassing (penal code 602 PC) as they are removed.  A misdemeanor capable of 6 months county and $1K fine, plus lawyer fees,costs, etc. each individual.  Usually much better to share that before bringing Louisville Sluggers to the party.

     My point was if they are considered trespassers, in the context of forcible entry, that would be CCP 1159 and if they did that, the police would just remove them. 

    https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1159.html

    Given that they have a key and all their belongings are inside the property, the police would refer this as a civil matter. How the courts view this would fall under one of two situations, they are either squatting or a subtenant.

    If they are squatting that would be under the definition of CCP 1160. That would require forcible detainer eviction to remove them: 

    https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1160.html

    I am not sure they are squatting, because they have relation to the previous tenant and were invited into the property during their tenancy. That meets the definition of subtenant. That would make the previous tenant holdover after the lease term ended. In that context, the previous owner is guilty of unlawful detainer, which is what I was trying to say. I believe this situation falls under either category 1 or 5 of CCP 1161:

    https://codes.findlaw.com/ca/code-of-civil-procedure/ccp-sect-1161.html

    Copy paste of 1 and 5:

    1.  When he or she continues in possession, in person or by subtenant, of the property, or any part thereof, after the expiration of the term for which it is let to him or her; provided the expiration is of a nondefault nature however brought about without the permission of his or her landlord, or the successor in estate of his or her landlord, if applicable; including the case where the person to be removed became the occupant of the premises as a servant, employee, agent, or licensee and the relation of master and servant, or employer and employee, or principal and agent, or licensor and licensee, has been lawfully terminated or the time fixed for occupancy by the agreement between the parties has expired; but nothing in this subdivision shall be construed as preventing the removal of the occupant in any other lawful manner; but in case of a tenancy at will, it must first be terminated by notice, as prescribed in the Civil Code.

    5.  When he or she gives written notice as provided in Section 1946 of the Civil Code of his or her intention to terminate the hiring of the real property, or makes a written offer to surrender which is accepted in writing by the landlord, but fails to deliver possession at the time specified in that written notice, without the permission of his or her landlord, or the successor in estate of the landlord, if applicable.

    It is best if they hire a local attorney to determine the best way to legally remove. It seems any way you look at this, they are not in "payment default" as a reason for eviction, so the eviction moratorium does not apply. One important note for the original poster, under no circumstances should you take any money from these people. That would become proof of a rental agreement and would make removal much harder.

    1Reply
  • Russell Gronsky
    OP
    Specialist · Baltimore, MD · Member since 2016 · 384 posts · 318 votes
    6y

    Thank you all for the constructive feedback. It has been very helpful.

    0Reply
  • Grace Chuang
    Member since 2020 · 18 posts · 3 votes
    6y

    Sounds like transpassing to me. Hope this gets solved soon. 

    0Reply
  • Todd Powell
    Rental Property Investor · Corvallis, OR · Member since 2018 · 840 posts · 1k+ votes
    6y

    @Russell Gronsky the side of RE that I hate with a passion; flaky people who take advantage and are leaches.

    0Reply
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