Homeowner wants to evict brother from apartment, where he is living rent-free

Ilyce Glink and Samuel J. Tamkin, Tribune Content Agency on Nov 21, 2024

Q: We own a house that has been converted into two apartments. My brother has been living in one of them for 13 years. He has never paid any rent. He used to take care of the place, collect rent from the other apartment, do minor repairs, etc. But we can no longer rely on him to do anything. We have actually been fined by the local housing authority due to the lack of upkeep.

We sent him a hand delivered letter telling him that we are selling the house and giving him 45 days to vacate but he has not responded. Can we evict someone who acts like a squatter?

A: You mentioned that you own the house and that your brother lives in one of the two units there. What you didn’t tell us is whether he is also an owner of the home. Probably not. So, we’re going to assume that you either own the entire property or you own it with someone other than your brother.

Either way, your brother is a tenant in the home without a lease.

While you may call him a squatter, that may not be an accurate description from a legal perspective. From the way you framed your question, it appears your brother lived in the apartment for years but you never charged him rent. In exchange for living there for free, he was supposed to do work around the property. Later, even after he stopped performing maintenance, upkeep and collection duties, you continued to allow him to live in the property. You were unhappy but never tried to evict him.

All that time, he remained in the apartment with your consent. So we can’t say that he was an actual squatter. He certainly benefitted from the arrangement and didn’t give anything back. Once you gave him the notice you were selling and told him to vacate, he was no longer welcome to stay in the apartment.

You should consult with an attorney that practices in the area of tenant evictions to get some advice about your situation. The laws of your state will govern what happens and when. Under the law, your brother may be recognized as a tenant at your property. If so, you may need to provide him property legal notice of the termination of his tenancy, as required by the laws of the state in which the property is located.

While you say you gave your brother a 45-day notice to vacate the property, the laws in your state may require more. You might have to give your brother notice that you are terminating his lease (he might be considered to have a month-to-month lease if you do not have a written lease, as per state law). You may also be required to set a date for that termination and give a set time for your brother to vacate the property. If your brother does not vacate the property on the date provided, then you might have to give him an additional notice to vacate and file an eviction notice with the court.

When it comes to eviction, the process is very important. You need to follow each step properly in order to get things done. And, it can take time, which will be frustrating. Of course, if you simply talk to your brother and he’s attentive and willing to move out — perhaps if you promise to reimburse some moving out funds — you won’t need to go through the steps required by law.

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(Ilyce Glink is the author of “100 Questions Every First-Time Home Buyer Should Ask” (4th Edition). She is also the CEO of Best Money Moves, a financial wellness technology company. Samuel J. Tamkin is a Chicago-based real estate attorney. Contact Ilyce and Sam through her website, ThinkGlink.com.)