Legal Question in Real Estate Law in California

GRATUITOUS GUEST

You may be a gratuitous guest. An owner may have the police remove a gratuitous guest and the owner change the locks on the house without notice. A gratuitous guest who is no longer welcome is a trespasser. However, since you are paying to live there, I doubt you are there gratuitously, so this may not apply.

LODGER

You may be a lodger. (Civil Code 1946.5) Ask if all of the following apply:

(1) You are a person contracting with the owner of a dwelling unit for a room or room and board within the dwelling unit;

(2) the dwelling unit is personally occupied by the owner;

(3) the owner retains a right of access to all areas of the dwelling unit occupied by the other person;

(4) the owner has overall control of the dwelling unit; and

(5) only a single person resides in the dwelling unit other than the owner.

If ALL of the elements apply, then you may be a lodger. Note the last element requires that only ONE person resides in the house other than the owner for lodger law to apply.

The hiring of a room by a lodger may be terminated by either party giving written notice to the other of his or her intention to terminate the hiring, at least as long before the expiration of the term of the hiring as specified in Section 1946.

The notice shall be given in a manner prescribed in Section 1162 of the Code of Civil Procedure or by certified or registered mail, restricted delivery, to the other party, with a return receipt requested.

Upon expiration of the notice period provided in the notice of termination given, any right of the lodger to remain in the dwelling unit or any part thereof is terminated by operation of law. The lodger's removal from the premises may thereafter be effected pursuant to the provisions of Section 602.3 of the Penal Code or other applicable provisions of law. (Essentially, the police consider it a trespass and are may remove the lodger without any court proceedings).

If any ONE of the foregoing elements does NOT apply, then the owner may need to evict the occupant the same way she would a tenant, below.

TENANT

A tenant differs from a lodger mainly in that a tenant pays the owner for an exclusive right of possession of all or part of the dwelling unit, such as a bedroom. The owner (landlord) has no right of access to areas of the dwelling unit occupied by the other person(s) except by proper notice or other means as specified under landlord-tenant law.

To terminate a tenancy, the landlord must give due notice to the tenant, file an unlawful detainer lawsuit, serve the summons, have the court award a judgment for possession of the property, and have the sheriff perform an eviction.

ANALYSIS

You may be a lodger and she may be required to give you 30 days written notice before calling the police to have you removed. I say 30 days because you paid the bills monthly, I assume.

However, if you tell the police you were renting a room month-to-month by verbal agreement and you have an exclusive right of possession of that room, then the police might refuse to get involved because the police can't tell if you are a lodger or tenant. I don't know if the police will go look at the room you are allegedly renting to see if it looks like you actually live in it (e.g., your own bed, dresser, etc.). In any event, the police might just tell her, "Sorry, ma'am, this is a civil matter."

If the police decide not to risk kicking out a tenant unlawfully, then the notice of termination of lodging may not count for anything, practically speaking. She may be forced to go the tenant eviction route, which requires a lawsuit, a trial if you fight the lawsuit, and can take perhaps 60 days from the date she gives you proper notice to terminate a tenancy.

However, lying to the police and/or the court could cause you trouble.

If the owner does an illegal lockout without due notice, then the occupant may be able to sue the owner for damages.

Disclaimer: My response to questions in this forum does not constitute legal advice, nor legal representation, or any attorney-client relationship whatsoever. The information provided is general and requires specific legal advice from an attorney with more knowledge of all relevant facts. Do not rely upon the information provided as legal advice or as the basis for making any decisions of legal consequence.

Mr. Storm is looking at it all wrong. You are an unwelcome ex-boyfriend, and she can get a residence exclusion order as part of a restraining order under the Domestic Violence Protection Act. She doesn't have to give you any notice at all under that act. Get your things and get out before you make things worse.

Looking quickly at the DVPA, it appears Mr. Roach makes a good point.