I realize that this is a pretty narrow question, but the issue of having to evict subtenants came up in a recent case of mine. I thought it might be appropriate to write a little on the subject.
Of course this article is for educational purposes only. I’m not providing legal advice. If you want legal advice, hire a lawyer. Especially in situations like this where things get tricky.
What is a Subtenant?
First of all, it’s important for me to explain what a subtenant is, so we are all on the same page. A subtenant is when a tenant leases (subleases) the premises to someone else. Example: You lease your house to me, and then I turn around and lease a room (or possibly the entire house) to my friend Stan.
In some cases the lease allows the tenants to do this, in other cases the lease doesn’t. Sometimes tenants sublease to make a little extra money or because they are going out of town for a period of time. This is often in express violation of the rental agreement.
How Do I Get Rid of Them?
If you are trying to get rid of subtenants (or your regular tenant, who happens to have subtenants) you have to do a couple extra things. The main thing is that you have to evict the regular tenant.
1. If you know the names of the subtenants, name them in the 3-Day notice and lawsuit.
2. If you don’t know the names of the subtenants, but think that there may be other people living there, include “Any Unknown Tenant” as a named defendant in the 3-day and the lawsuit. For many landlord/tenant lawyers this is a standard operating procedure so they make 100% sure that when it comes time to execute the writ of possession, there aren’t any surprises.
3. If you know there are additional people there, include specifically in your pleadings that these people are there, that they don’t have a rental agreement with the landlord, that they are not in privity of contract with the landlord, and that the landlord has never accepted rent from these subtenants. If you know the subtenants have an agreement with X tenant, then say the subtenants have an agreement with X tenant, and not the landlord, and that all rights that these subtenants have, including the right of possession, flows through X tenant. The idea is you have to explain clearly what is going on, so that the Judge can understand the situation, and ultimately make the right decision.
4. When it comes time to attend a hearing, you are going to have to put on evidence illustrating that there was no agreement between the landlord and the subtenants. You are also going to have to meet the burden of proof for evicting the tenant that does have a lease (which will depend on whether it’s a non-payment of rent, material violation of the lease, or a holdover tenant situation).
What’s next?
When you set up the suit properly these cases become very straight forward. If you can get the main tenant out, then all the subtenants will have to get booted out as well. If you don’t set the case up properly, you set yourself up for all kinds of headaches, which could include re-doing the entire proceeding. It’s best to take the time to understand the situation fully, serve a proper notice, draft accurate and detailed pleadings, and follow through when it comes time for a hearing.
Final Thoughts
Subtenants can be an interesting issue in an eviction proceeding. My hope is that this article provided some insight as to how best approach these types of situations. If you are a non-lawyer reading this article, I do recommend consulting with an attorney. If you are in Manatee, Sarasota, or Charlotte county with an eviction matter feel free to give me a call. My office is in Venice and I work on these kinds of cases routinely.
