Legal advice about evicting someone from a house.

[Kurosaki]

If he actually moves out and into a new place, your mom should immediately change the locks. I'd even recommend delivering him any belongings left behind to get him completely out of the house. Then, she needs to show tough love and not let him move back in. If he tries down the road, don't open the door, and call the police, would be my advice.

If he doesn't move out like he agreed to, she can't change the locks and lock him out. She must wait until it's a done deal.

I wish JDHU had posted his advice up here for the benefit of everyone else.

I told her to call me immediately after he leaves. I won't believe it until it happens. He should be taking all his belongings. His girlfriend is bringing a rented truck to the house apparently so they can fill it up. Why she is still with him even after kicking him out for his toxic behavior, I don't know but that's a separate unrelated topic.

Changing the locks won't matter? He doesn't even have a key to the house. She took his key awhile ago, even before he moved back in. He only gets let back into the house if she lets him when he's back from wherever he goes. But he's made copies of keys before without permission or anyone knowing until he was caught, including one of my bike keys. It's an inexpensive peace of mind and easy to do, I'd be glad to do it for her, so I do agree with changing the locks just in case.

If Jimy is okay with it, I'd be happy to post his advice.

 

[NorCalBusa]

Once he is out, Mom (or you) should take a bunch of pictures of "his space" demonstrating he and all his crap are indeed "out"- bedroom, couch, bathroom, closets, dressers, etc.- all empty. It's important to memorialize this and DSQ any mail coming with his name on it- forward to the new addy or mark "Return to sender- moved". Even junk mail.

Then the hard part starts- can't allow him back in the place, even with permission. No dinners, no TV shows, sleeping even "just one night" or "a couple hours" on the couch- da nada. No entre of any kind. Unless you/she cares to go through this again...

 

[Kurosaki]

Once he is out, Mom (or you) should take a bunch of pictures of "his space" demonstrating he and all his crap are indeed "out"- bedroom, couch, bathroom, closets, dressers, etc.- all empty. It's important to memorialize this and DSQ any mail coming with his name on it- forward to the new addy or mark "Return to sender- moved". Even junk mail.

Then the hard part starts- can't allow him back in the place, even with permission. No dinners, no TV shows, sleeping even "just one night" or "a couple hours" on the couch- da nada. No entre of any kind. Unless you/she cares to go through this again...

I told her she shouldn't have let him back in the first place when he was kicked out of his girlfriend's apartment but here we are and why I started this thread... Every time I've talked to her on the phone throughout this, I constantly remind her to not do it again, ever, because I can hear a small inkling of her not cutting him off for good this time. Don't listen to his manipulations, his empty promises, his lies that he's saying or doing anything for her benefit and not his own, none of it. It's gotta stop. He's been this way since he was a kid and he's not going to change.

 

[bojangle]

Hopefully she follows through with this advice next time.

And there will be a next time.

Fool me once, shame on you. Fool me twice, shame on me.

 

[Kurosaki]

We're on around the 10th time, at the very least. I don't know 'ce' number words after thrice.

I think I've painted a picture of his character that is accurate and why this was so important to me for my mom to get this solved ASAP. I mean... this is a guy that his literally wrecked every single car he's owned and a few of my parents' cars over the years, that number is around 7 or 8, has 2 or 3 DUIs. Someone who never learns.

 

[Kurosaki]

Update, brother and his girlfriend did bring a U-Haul to mom's and loaded up his stuff and took it to his new apartment.

But... They left the dog still at the house saying they will come pick the dog up tonight. Sounds like an excuse to come back for another night because reasons? Or come back tomorrow. Why did they leave the dog? He doesn't have a ton of stuff, not that THAT would matter but there wasn't space in the cab of the truck for the dog? How is that going to be any different than another car?

So, he left his dog in his old room with the door closed. My mom doesn't know if he left the dog food and water. He didn't tell her if the dog has food and water. He just told her they're going to come back to get the dog tonight. I'm not surprised. I KNEW there was some reason this would not be finished today.

The dog is untrained. It's pissed all over her house. My mom is too old to deal with an untrained big dog. She is not inhumane but she is not going to deal with the dog. It might go hungry tonight if my brother didn't leave food and water for it.

Outside of everything that's happened, who fucking does that to an animal? Outside of all of this issue with my mom, this is the most disappointing. Just leave your dog without any real care This isn't like saying "I'm coming back to get my TV". It's a fucking dog. I HOPE he is coming back to get his animal. Mom is at the point where if he doesn't come get the dog, she's going to call whatever service she can to come get the dog.

There is no reason, I understood, why he could not take the dog with him when he was moving but I am not surprised he is so selfish, he left this dog at my mom's house while he moves.

I don't like my brother at all but I'm not sure I've ever called him a serious piece of shit. Right now, I'm going to say my brother is a serious piece of shit. He moved back in with mom and made her feel like a prisoner in her own home with his toxicity and even when he is in the process of leaving, he left a big untrained dog with nobody that is fit to take care of it saying he'll "come back to get her".

 

[jdhu]

Good AM all. Kuro, did your brother come back for the dog? Poor dog...

Pasted below is the PM I sent to Kuro. I sent PM instead of post here just in case there was anything private/sensitive that might be discussed.

This has come up for me in the past, and I don't find any sort of "constructive tenancy" under CA law. (I've read some people say that, for example, keeping a toothbrush at a residence establishes some sort of implied tenancy, but I've never come across any legal basis for that).

OK, since your brother is not paying rent, my view is he is nothing more than an unwanted houseguest, meaning he has no rights whatsoever that a tenant has.

I would suggest:

1. Reason with him. If he has any conscience at all, perhaps reminding him that he is causing your mother a lot of stress will have an effect. If he asks for some sort of compensation, then as someone else suggested, I think it's worthwhile to have him sign an acknowledgment/agreement that he was paid to not come back (specify duration, or just say "in perpetuity," etc.).

2. Talk to the sheriff's office. Respectfully ask for a supervisor, as your average deputy probably won't be helpful. Explain that your brother is not paying rent, that he has no tenancy rights (you might even explain you have consulted attorneys who advise you of this), and that he is causing your mother a lot of stress, anxiety, etc. Request that they require your brother to move out (and be present for it).

3. Demand letter from lawyer. This might scare your brother into moving out.

4. Restraining Order. I'm mixed on this. I don't know if you know the process, but a Temporary Order (lasting 7 days or so) is automatic. You just fill out paperwork with the court clerk. BUT, then your mother would have to go to court to request a Permanent Order (lasting 3-5 years, despite the name), which might cause stress. Also, courts are a bit wary of using a Restraining Order to kick someone out of a house, and if there hasn't been violence or threats of violence.

5. Unlawful Detainer. I think this is unnecessary and doesn't even make much sense, since your brother is not a tenant. BUT, if all other options don't succeed, then I guess this is it.

I hope this helps. Let me know any thoughts/questions.

 

[bojangle]

Good AM all. Kuro, did your brother come back for the dog? Poor dog...

Pasted below is the PM I sent to Kuro. I sent PM instead of post here just in case there was anything private/sensitive that might be discussed.

This has come up for me in the past, and I don't find any sort of "constructive tenancy" under CA law. (I've read some people say that, for example, keeping a toothbrush at a residence establishes some sort of implied tenancy, but I've never come across any legal basis for that).

OK, since your brother is not paying rent, my view is he is nothing more than an unwanted houseguest, meaning he has no rights whatsoever that a tenant has.

It's not that leaving a toothbrush establishes any sort of tenancy, but it is the totality of the circumstances plus he said she said. Often the police are called in to help sort these things out, and it's probably not a surprise that opposing parties often have different versions of the same story. As the owner, it's just about protecting oneself as much as possible.

Maybe you got more info over PMs, but we never got info on if he was paying rent or how long he had been there. It did sound like all (most?) of his stuff was at mom's house, including a pet. Also had no information of getting mail at the house, paying any utilities, or having a key. The lack of key part was mentioned at the end. I'd just say that it's the totality of everything, and one is not required to pay rent, or anything, to establish residency.

When in doubt, police are usually going to play things on the side of caution, and assume the person has established residency.

I would suggest:

1. Reason with him. If he has any conscience at all, perhaps reminding him that he is causing your mother a lot of stress will have an effect. If he asks for some sort of compensation, then as someone else suggested, I think it's worthwhile to have him sign an acknowledgment/agreement that he was paid to not come back (specify duration, or just say "in perpetuity," etc.).

Agreed.

2. Talk to the sheriff's office. Respectfully ask for a supervisor, as your average deputy probably won't be helpful. Explain that your brother is not paying rent, that he has no tenancy rights (you might even explain you have consulted attorneys who advise you of this), and that he is causing your mother a lot of stress, anxiety, etc. Request that they require your brother to move out (and be present for it).

A few thoughts here. I'd think probably most deputies would be more familiar with eviction laws than police officers, since they deal with evictions directly. An agency may or may not accommodate a request to talk to a supervisor over a deputy, however, I'm thinking most would not, as this would be a normal beat call and not a complaint. I'm thinking most sergeants would read the request and send the call to a deputy to handle.

Secondly, unless this is an eviction, a sheriff's office will not get involved in dealing with a landlord tenant issue inside a city, or in the jurisdiction of another agency. If the residence was in a city, I'm betting the deputy tells the person to call the police in that jurisdiction for help. They should respond if the residence was in an unincorporated area, but it's probably fairly unlikely they are making an arrest for trespassing, or otherwise making anyone leave, short of it being abundantly obvious they were simply an unwanted guest, and both parties made statements supporting this. The vast majority of all landlord tenant issues I've dealt with over the last 26 years did not involve us having anyone leave. And I've dealt with plenty of similar situations. Like I said, police will err on the side of caution (consideration for the unwanted person living there) over forcing the issue where the officer might be wrong to force. Forcing the issue could lead to an unlawful arrest and/or use of force. Better to just advise the owner (or tenant on the lease) to start an eviction process.

3. Demand letter from lawyer. This might scare your brother into moving out.

Sure, that might work. I guess it can't hurt, other than the attorney fees.

4. Restraining Order. I'm mixed on this. I don't know if you know the process, but a Temporary Order (lasting 7 days or so) is automatic. You just fill out paperwork with the court clerk. BUT, then your mother would have to go to court to request a Permanent Order (lasting 3-5 years, despite the name), which might cause stress. Also, courts are a bit wary of using a Restraining Order to kick someone out of a house, and if there hasn't been violence or threats of violence.

I agree, and already wrote as much.

5. Unlawful Detainer. I think this is unnecessary and doesn't even make much sense, since your brother is not a tenant. BUT, if all other options don't succeed, then I guess this is it.

I hope this helps. Let me know any thoughts/questions.[/B]

This last one I'm not so familiar with. This is part of the eviction process, right?

 

[Kurosaki]

Update, he did come get the dog. Mom told me while picking up the dog and some over left over things of his, he took one of her TVs and a bookcase. Maybe a spare microwave that was in the garage or some other things that weren't his but she hasn't looked around the whole house and garage yet. So on top of all of this, he stole from her.

At least he's gone and she feels she can breath again in her own home. And I reminded her to change the locks as a precaution if he made a key copy.

I'm glad this didn't actually turn into a legal issue but it was good to have the information just in case. But I still have a suspicion this is not over yet.

Maybe you got more info over PMs, but we never got info on if he was paying rent or how long he had been there. It did sound like all (most?) of his stuff was at mom's house, including a pet. Also had no information of getting mail at the house, paying any utilities, or having a key. The lack of key part was mentioned at the end. I'd just say that it's the totality of everything, and one is not required to pay rent, or anything, to establish residency.

No he was not paying rent. He'd been there for about 3 weeks. So not even a month. He was not paying utilities. It's not his mailing address.

The only financial help he gave her was paying for carpet cleaners after his dog pissed all over the carpets multiple times.

 

[jdhu]

It's not that leaving a toothbrush establishes any sort of tenancy, but it is the totality of the circumstances plus he said she said. Often the police are called in to help sort these things out, and it's probably not a surprise that opposing parties often have different versions of the same story. As the owner, it's just about protecting oneself as much as possible.

Maybe you got more info over PMs, but we never got info on if he was paying rent or how long he had been there. It did sound like all (most?) of his stuff was at mom's house, including a pet. Also had no information of getting mail at the house, paying any utilities, or having a key. The lack of key part was mentioned at the end. I'd just say that it's the totality of everything, and one is not required to pay rent, or anything, to establish residency.

When in doubt, police are usually going to play things on the side of caution, and assume the person has established residency.



Agreed.



A few thoughts here. I'd think probably most deputies would be more familiar with eviction laws than police officers, since they deal with evictions directly. An agency may or may not accommodate a request to talk to a supervisor over a deputy, however, I'm thinking most would not, as this would be a normal beat call and not a complaint. I'm thinking most sergeants would read the request and send the call to a deputy to handle.

Secondly, unless this is an eviction, a sheriff's office will not get involved in dealing with a landlord tenant issue inside a city, or in the jurisdiction of another agency. If the residence was in a city, I'm betting the deputy tells the person to call the police in that jurisdiction for help. They should respond if the residence was in an unincorporated area, but it's probably fairly unlikely they are making an arrest for trespassing, or otherwise making anyone leave, short of it being abundantly obvious they were simply an unwanted guest, and both parties made statements supporting this. The vast majority of all landlord tenant issues I've dealt with over the last 26 years did not involve us having anyone leave. And I've dealt with plenty of similar situations. Like I said, police will err on the side of caution (consideration for the unwanted person living there) over forcing the issue where the officer might be wrong to force. Forcing the issue could lead to an unlawful arrest and/or use of force. Better to just advise the owner (or tenant on the lease) to start an eviction process.



Sure, that might work. I guess it can't hurt, other than the attorney fees.



I agree, and already wrote as much.



This last one I'm not so familiar with. This is part of the eviction process, right?

You might be right about "totality," from an on-the-ground standpoint. But, legally, I see no basis for his brother establishing tenancy. There's no rent paid (so no month-to-month, oral lease), which is of course the key factor. My view (as a non-UD lawyer) is "totality" approach is not based on the law.

I had thought police don't really get involved in any sort of eviction, only sheriff? I've had success (though again, not a UD lawyer, so tiny sample size) getting deputies to assist with removing a guest, even within cities. Also have had success speaking to supervisors, by busting out the "don't you know what I am? Lawyer!" line (kidding, but based in some reality).

UD is the same thing as eviction process.

As an aside and for future (though hopefully not in Kuro's case), I'd have offered to send a demand letter on my letterhead, without charge (have done so on several occasions for BARFers, usually on condition they do all the legwork and basically just put it on my letterhead).

 

[NorCalBusa]

OP- apologies but let me predict the return of the unwelcome "guest".

In preparation for that, I suggest Mom give the cops a call and ask them to come by in the next day or so. Have a calm chat about "how things are" and the anticipated return. This allows for a calm, "what if" discussion- mostly so they know he isn't welcome and have much of the holes filled in and know the circumstance of the call when it is broadcast. It's much of what community policing is about. Be sure she gives them a description and license plate of whatever he drives, they could append it to her addy with their notes*.

*Dave- sound right?

 

[bojangle]

You might be right about "totality," from an on-the-ground standpoint. But, legally, I see no basis for his brother establishing tenancy. There's no rent paid (so no month-to-month, oral lease), which is of course the key factor. My view (as a non-UD lawyer) is "totality" approach is not based on the law.

I had thought police don't really get involved in any sort of eviction, only sheriff? I've had success (though again, not a UD lawyer, so tiny sample size) getting deputies to assist with removing a guest, even within cities. Also have had success speaking to supervisors, by busting out the "don't you know what I am? Lawyer!" line (kidding, but based in some reality).

UD is the same thing as eviction process.

As an aside and for future (though hopefully not in Kuro's case), I'd have offered to send a demand letter on my letterhead, without charge (have done so on several occasions for BARFers, usually on condition they do all the legwork and basically just put it on my letterhead).

Police don't get involved in evictions, only sheriff. But the police are still involved in any and all other disputes of all kinds, whether criminal, civil, child custody, landlord tenant. Everything and anything. Police often have to advise people about issues involving unwelcomed guests, trespassers, and tenants. Advising what they can and can't do. Helping to mediate the situation on scene. Often times this involves advice to contact the sheriff and start the eviction process.

OP- apologies but let me predict the return of the unwelcome "guest".

In preparation for that, I suggest Mom give the cops a call and ask them to come by in the next day or so. Have a calm chat about "how things are" and the anticipated return. This allows for a calm, "what if" discussion- mostly so they know he isn't welcome and have much of the holes filled in and know the circumstance of the call when it is broadcast. It's much of what community policing is about. Be sure she gives them a description and license plate of whatever he drives, they could append it to her addy with their notes*.

*Dave- sound right?

Sure. She can talk to an officer about the situation and let them know he voluntarily moved out, all his stuff is out, no lease, no verbal agreement, no key, etc. Let them know she anticipates him likely returning at some time and trying to demand entry and claim he lives there. She can just ask for some general advice.

But just as important, this will create a documented call for service. Most agencies use a Computer Aided Dispatch system, where there is a form of written documentation of all calls for service, including those where no police report is written. Each incident is assigned an incident number. She can request this number. Police can refer back to it and see the nature of the prior call. Even better if the officer added notes to the call. It can help them determine what's going on in the future, should he return claiming he lives there, or claiming he was just unlawfully kicked out, or whatever other nonsense he might come up with.

 

[Kurosaki]

I will pass that advice along to her. Thanks gents.

Also thank you once again for everybody that pitched in here. It's been very frustrating feeling like I can't do much more than be there for her and talk with her on the phone so she can vent and share what you guys have told me so she has a better understanding of her options.

I said it before but my presence there would have just made things worse. He is no family to me and it's not like I could throw him and his dog out myself. It would have just led to increased arguments and toxicity.

Shitty feeling to know your elderly mom has a monster in her home and there's not much I can do about it.

 

[cheez]

I will pass that advice along to her. Thanks gents.

Also thank you once again for everybody that pitched in here. It's been very frustrating feeling like I can't do much more than be there for her and talk with her on the phone so she can vent and share what you guys have told me so she has a better understanding of her options.

I said it before but my presence there would have just made things worse. He is no family to me and it's not like I could throw him and his dog out myself. It would have just led to increased arguments and toxicity.

Shitty feeling to know your elderly mom has a monster in her home and there's not much I can do about it.

I'm 2400 miles from mine; I know exactly how you feel. Good luck man.