I have been renting an in-law unit to a cousin for a few years.  She never signed a rental agreement and recently she has become rowdy and weeks late with her rent.  I have tried to talk to her about these problems, but nothing seems to be getting through.  Is it possible to evict her if she was never “technically” a tenant?

The first problem is that your cousin is “technically” a tenant.  A tenant is any person entitled by written or oral agreement to occupy a residential unit to the exclusion of others.  It makes no difference that this person is a relative, or that there is no signed written rental agreement.  She is a tenant afforded all of the rights that any other non-relative tenant would have.

The second problem is that there is no written lease.  There is an agreed upon monthly rent, but trying to prove when rent is due and late may be difficult under these circumstances.  When there is no written rental agreement, the lease is oral, and this usually means that the owner is hard-pressed to enforce any specific lease covenant against the tenant.

If the tenant is rowdy, you may have grounds under the rent law to evict her.  RoSpecifically, a tenancy may be terminated when the tenant is committing a nuisance.  “Nuisance” is broadly defined, and includes conduct that creates a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building.  The general rule is that other tenants should document their complaints and be prepared to testify against the offending tenant.  In addition, police reports are also good evidence of nuisance-like conduct.  Occasional loud talking or music probably will not support a nuisance claim.  However, if her behavior is disruptive, you should describe the offenses in writing and provide her with ample opportunity to cease and desist.  If the warning letters are ignored, you may be able to end the tenancy with a three-day notice to quit.

In addition, if the unit is “unwarranted,” meaning it was constructed without permits and has no certificate of occupancy, you may be able to withdraw it from housing use and thereby terminate the tenancy.  To do so, you need to obtain all plans and permits with the Planning Department and Department of Building Inspection.  Your tenant is then entitled to a termination notice and relocation payments.  The amount of relocation is based upon the newly passed Proposition H, meaning that each tenant receives $4,568.92 plus an additional $3,046.00 if they are elderly, disabled, or have at least one child under the age of 18 years.  A thirty-day notice is required if the tenant has resided in the unit less than one year; otherwise, for occupancies one-year or longer, a sixty-day notice must be given.  Once removed, the unit can no longer be rented as a separate dwelling, and you must perform the demolition work requested in your permit application.

You can also seek to terminate her tenancy for nonpayment of rent, but this route may be problematic for two reasons.  First, there is no written lease, so determining when rent is due will depend on the owner’s self-serving testimony versus that of the tenant.  Second, if the in-law is unwarranted, you may not be able to demand rent for it, and the fact that it is an illegal dwelling will certainly provide the tenant with a substantial defense to any action for nonpayment of rent.

In sum, treat this person as you would any other tenant.  Your mistake was not having her sign a written lease.   

DW