Can you legally throw out an adult child without a legal eviction?

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Can you legally throw out an adult child without a legal eviction?

A 22 year old moved back in with parents almost a year ago and will not follow rules (keep his room clean or work more than 2 days a week to afford his bill or pay his own way).

Asked on June 28, 2012 under Real Estate Law, New York

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

Technically, if the child is not paying rent, he is a guest, not a tenant. A guest may only remain so long as the property owner (or the tenant, if it's a rental) allows him to, and that permission may be withdrawn at any time, for any reason. If the permission is withdrawn and the guest does not leave, he becomes a trespasser, and the police should help remove him. So in theory, there is no need for an eviction action.

However, the police sometimes refuse to do this, feeling that if someone has been living there for some time or claims some right to live there, that the courts should determine whether he can be made to leave. If the child claims a right to stay and the police will not remove him, then the parents would need to bring an "ejectment" action--which is basically "eviction for non-tenants"--to remove him.

Note that if the child is supposed to pay rent--which can include paying certain household bills, like utilities--then even if he has not in fact paid these amounts, he is a tenant: the obligation to pay for residence, even if not honored, creates a tenancy. In this case, he would need to be evicted, but could be evicted for nonpayment of rent (if he hasn't paid). Or alternately, if he is a tenant but there is no written lease, he is a month to month tenant on an oral lease; the parents may give him 30 days notice terminating his tenancy, then evict him if he does not go.


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