FAIRFIELD-SUISUN, CALIFORNIA

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31-year-old son still lives at home, how do we get him out?

By From page HSR2 | May 17, 2014

Q:  My wife and I are longtime readers of your wonderful column. But we now have a question that we’ve never seen you write about and we want to know if you can give us some guidance. We’re at our wits end. Our son, our only child, turns 31 in July. He has always lived here at home. In fact, he lives in the same bedroom he grew up in. He’s had low paying jobs on and off, always part-time, and more times than not he gets fired. In short, we’ve always supported him. But we’ve had enough. It’s more than time he gets out and starts his life. My husband has confronted him on numerous occasions and our son just says this is “his house too” and he’s not going anywhere. We don’t know what to do. We want to be loving parents but it’s just not good for him to stay here under our wings, so to speak. Can you give us some advice on how to get him to move out.

A:  Whoa! At first I thought your email was mistakenly routed to me from the Ann Landers department. And while I may share many of this column’s readers’ inevitable thoughts on your problem, I didn’t think them appropriate for a real estate law column.

But after rereading I think what you’re really asking is how, in a legal procedural way, do you get him out of the house?

That I can help you with.

One of the things I most appreciate about choosing real estate as a specialty is the simple truth that real estate law cares little about the emotions of the parties involved. Whether it’s a father and son, or two wealthy professional real estate investors, the laws are the same.

So, emotions aside, here’s how you should look at the situation.

Once your son turned 18 you, as parents, were no longer either legally responsible for him nor had the ability to control his choices and actions. At that point, the legal relationship changed.

There are generally three types of people who occupy a property.

The occupant could be an owner, which your son isn’t.

He could be a trespasser. But a trespasser must generally come onto the property without the permission of the owner. In this case, you gave him permission the day he was born.

The third option is he’s a tenant.

Tenant’s come onto the property with the permission of the owner under an agreement that they can occupy the property.

You are now his landlords and he’s your tenant. It’s really as simple as that.

More specifically, he is a special type of tenant generally called a lodger or boarder. The distinction is a lodger/boarder typically rents a room in someone’s personal residence.

Everybody is walking around the house together, using the kitchen, the bathroom, the TV, etc.

Because of the arrangement the law recognizes there is an inherent day-to-day intimacy that doesn’t exist if the tenant is renting an apartment unit.

As a result, the law lets you get the boarder out a little more easily. Normal tenants can only be forcibly evicted through the use of a special lawsuit known as an unlawful detainer. However, landlords who have only one lodger/boarder can get the person out without needing to file a lawsuit.

Here’s how:

You must give the boarder a written notice that he can no longer stay. Technically, the notice period depends upon when rent is to be paid. If the boarder pays rent every week you have to give a week’s notice.

In your case, since I presume there’s no rent, the law will absolutely recognize 30 days as being adequate. You may get away with less, but 30 days is safe.

At the expiration of the time on the notice you can simply call the Sheriff’s Office or police to remove him as a trespasser.

At least, that’s what the law requires the police to do. However, you could easily run into a situation where the officer shows up and won’t take action because he’s not sure of your son’s legal status.

I have been told by longtime police officers that they are routinely called by landlords to remove tenants for not paying their rent, which of course the police can’t do. The difference between that common circumstance and yours is a highly technical distinction and one the officer may not feel qualified to make.

In that event you should be prepared to seek a restraining order from the court. It can be done quickly, within a few days. As soon as the order is issued the police will then be happy to take action.

Tim Jones is a real estate attorney in Fairfield. If you have any real estate questions you would like to have answered in this column you can contact him at [email protected].

 

Tim Jones

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