How to evict a subtenant

Carol: Hi. I have a question about tenancy law.

Attorney Tom Olsen: All right.

Carol: A sticky situation which -- my roommate and I are renting a townhome and got permission to sublet one of the rooms and the tenants were subletting, too. He has recently allowed his estranged wife to move in and she started receiving mail here. However, with her moving in she also brought some illegal substance abuse into the home.

We have given him his notice to move out and we have let him know that she is not welcomed to stay here. In the meantime, he is trying to argue that because she receives mail at the home that we also have to give her the same length of time to actually leave the premises. I'm trying to decide if there's any definition to an illegal tenant and if she qualifies under that and what our obligations are to her.

Attorney Tom Olsen: Carol, let me ask you. At the end of the day, do you think that they are both going to voluntarily move out or they're going to stay put until you do some kind of legal action?

Carol: He seems to be pretty willing to move out in about two weeks. However, the substance abuse is pretty consistent with her so it’s made us very uncomfortable. We’d like her to leave immediately.

Attorney Tom Olsen: Rob, what do you think about Carol’s situation?

Attorney Rob Solomon: I hear this all the time: if you get mail, you're a tenant. That’s wrong. That’s just wrong and she's not a tenant because she gets mail. She's a tenant if she's required to pay rent or if she's on the lease. She's not on the lease; she's not required to pay rent. All she is is a guest of your tenant, your subtenant.

If you would say to her, “You have to leave,” she ought to be leaving. If she isn’t leaving, you're going to have to evict her or her boyfriend or both because there isn’t another procedure other than that.

Attorney Tom Olsen: Carol, the bad news is there's no self-help here and I know you want her gone tonight, but either she's voluntarily moving out of there in a couple of weeks or you're having to do some kind of eviction process.

Carol: Okay. So it’s not something where we could try to get her for trespassing if she can –

Attorney Tom Olsen: That makes perfect sense except the police never do that. I hear you; I often try to get the police to understand that she's nothing more than a trespasser. Once consent is withdrawn, they will tell you go see a lawyer, go to court, and you're going to use a procedure called an illegal detainment because she's not actually a tenant.