Do I have the legal power to evict my roommate?
The answer to this question depends on who is named on the lease. Here’s what happens in a handful of different scenarios:
- What if you’re both on the lease? You cannot evict your roommate, as you are not your roommate’s “landlord.”
- What if there’s no lease? If there is no lease in place, you are not a “landlord” under Massachusetts law. As such, you cannot evict your roommate.
- What if I’m on the lease and my roommate is not? You can evict your roommate, who is considered your tenant under the law. This is the case even if you and your roommate do not have a formal sublease.
That’s the gist—but, of course, the law is more complicated than that. Massachusetts statutory law on this issue is complex, perhaps unnecessarily so. Indeed, it derives from the common law legal conception that a “lease” is a unique property interest in itself, rather than a contract between a landlord and a tenant, and as a result, much of the law is drafted in a way that is not immediately accessible to the layman. After some landmark decisions in the 1960s and 70s, the courts in Massachusetts now treat leases like contracts, but the law itself remains convoluted.
Creating a landlord-tenant relationship in Massachusetts requires three things: 1) an agreement, either oral or written, 2) to occupy property, 3) in exchange for money or some other consideration. As such, anytime these three elements are met, a landlord-tenant relationship has been established. This means that if you and your roommate made an agreement wherein she would pay you money directly to live there, you are her landlord, she is your tenant, and you may evict her. This is the case whether you have a written lease or simply an oral agreement.
How do I know if I have a good reason to evict my roommate?
Legally, you can’t evict someone just because you’re sick of them leaving dirty dishes in the sink. There are three grounds for eviction in Massachusetts:
- Your roommate has not paid the rent. This is the case even if you and your roommate do not have a formal written sublease—although, as is detailed below, you may eventually need to prove in court that you two had a verbal agreement.
- Your roommate has violated the lease in some other way. Remember, if both of you are on a lease, you cannot evict your roommate. So the “lease” we are talking about here is a sublease. If you and your roommate entered into a sublease agreement, and she has violated a term thereof, she can be evicted on that basis. If there is no written sublease, then you have a problem. Technically speaking, you can evict your sublessor based on a breach of an oral agreement the two of you made, but you are going to need to prove the existence of the agreement in court, and that she violated it. One responsibility your roommate does have, according to relevant case law, is to keep her portion of the apartment safe. So, if your roommate is building campfires in her room (for example), even if your agreement with her does not explicitly ban such behavior, it could be the basis for an eviction.
- Your roommate has a month-to-month sublease. If you and your roommate do not have an agreement that she can stay for a fixed period of time, but instead have a so-called “month-to-month” sublease, you can end her sublease at any time for any reason, with 30 days’ notice. This is not technically an “eviction” unless she refuses to leave, but it’s good for you to know regardless.
Should I get my landlord to help?
If you and your roommate are both on the lease, the only way you can get your roommate out is by involving your landlord. Talk to your landlord—explain why you want your roommate out. If your roommate is engaged in behavior that is harming the apartment, or if his actions make it difficult for you to pay the rent, your landlord may have a very good reason to want him out.
On the other hand, if you are subleasing, you should be very careful before involving your landlord. That’s because there is no presumption in Massachusetts law that tenants can always sublease an apartment. If your lease bans you from subletting, but you did it anyway you are in violation of your lease. And you might not want to draw your landlord’s attention to this fact. So if your roommate is not on your lease, go read the lease and see if subletting is allowed. If so, it can’t hurt to talk to your landlord.
How much notice do I have to give?
If you are evicting your roommate based on a failure to pay you rent, you need to provide your roommate with a 14-day notice to either pay rent or vacate the premises. A failure to comply with some other provision of a sublease requires thirty days’ notice, as does the termination of a month-to-month lease.
All of the above notices must be served on your roommate in accordance with the laws of Massachusetts. This essentially means that you, or someone on your behalf, must hand the notice directly to your roommate.
Going to court
How do I file eviction papers?
If you have served your notice, the designated time period has passed, and your roommate has not either cured her default or moved out, it’s time to file. Head to your local Housing Court, and fill out and file what is known as a Summary Process Summons and Complaint. Make sure you bring multiple copies of the notice you already gave your roommate, as well as any written lease agreement you two have, and your own lease agreement with your landlord. There is a filing fee. The clerk at the courthouse will provide you with a stamped and signed form that includes a court date when both you and your roommate have to appear before a judge.
Next, have your roommate served with the Summary Process Summons and Complaint. One very important thing to note – you cannot serve this directly on your roommate. It must be done by a third party. You can hire a process server, or request that the county sheriff serve your roommate.
Your roommate will be able to file an “answer” to your complaint up to the Monday before your court appearance, if she wants to contest the eviction.
One thing to note—once the eviction is filed, your roommate cannot “cure” her breach to you, either by paying the rent or stopping whatever conduct caused you to file for eviction. Her time to do that was during the 14 or 30 day “notice” period. Once that has expired, she is out of luck.
What happens in court?
Whether your roommate is contesting the eviction or not, be absolutely prepared for your court date. When your first scheduled court appearance is on, make sure to bring all of your evidence to show the judge. Make sure you bring bank statements showing your roommate’s previous rent payments, as well as proof that you paid the full monthly rent to your landlord. This will help you establish the existence of an agreement between you and your roommate. If you are seeking to evict your roommate based on some other violation of your sublease, bring all the proof you need to show the judge that she breached the sublease. For example, if she physically damaged the apartment, bring pictures.
If your roommate contests the eviction, this process could go on for some time—be ready for a trial, which will involve several court appearances and could drag on for months. At this point, it is strongly recommended that you consult with a landlord-tenant lawyer.
If your roommate declines to contest the eviction, and you are seeking a default judgment, things should proceed much more easily. If all goes well, and you prove your case, the judge will issue an order of eviction against your roommate, giving her a set number of days to remove herself from the apartment. If she fails to do so, you can provide the court order to the county sheriff, who will forcibly remove your roommate and her belongings from the apartment. And finally, you are free!
Should you need assistance in evicting a roommate, contact the Law Offices of Renee Lazar at 978-844-4095 to schedule a FREE one hour no obligation consultation.