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Verbal Lease....

 
 
Reply Sat 19 Mar, 2011 11:09 pm
A little over a year ago I thought moving out on my own would be an awesome idea which it was, except for that I moved into a home that unfortunately rendered me unto a Verbal Leasing arrangement. The only thing that was ever agreed upon was that I would pay $300 a month on a per month basis to live in the home. Now my roommate and landlord seem to think that because there is no lease that I have no say as to what goes on in the house as far as shared space and that my $300 a month just gets me my bedroom and that is the only thing in the house that I am truly entitled too, now what I would like to know am I just being fed a bunch of crap here? If so, what should I do to try to get things to come over my way as far as getting them to realize that this is my home too. I am open to any suggestions and comments at this point because I've had just about enough crap from these people..... Things such as unanounced entering of the home from the landlord and family, things of mine have been tampered with without my permission etc.... I know a lot of these are civil matters but I am just looking for some feedback here.
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Type: Question • Score: 3 • Views: 7,294 • Replies: 17
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BillRM
 
  0  
Reply Sun 20 Mar, 2011 12:27 am
@jammin87,
You only have a month to month lease in any case so my first reaction would be to find another apartment/home and move.
roger
 
  1  
Reply Sun 20 Mar, 2011 12:45 am
@BillRM,
Sounds like a month to month rental to me, too. Unless you live in a very screwy state, though, your landlord has no right of entry. There are laws in effect in spite of not having a written. The law might even require you provide notice in advance of moving out. Check on that, and get going.

Never forget, a verbal (oral) agreement isn't worth the paper it's written on.
0 Replies
 
PUNKEY
 
  1  
Reply Sun 20 Mar, 2011 08:11 am
Whether or not its month to month has nothing to do with unannounced entry into your room.

If you have a paper trail of your payments (receipts, cancelled checks) ,then any court would recognize that have a contract with this person. (But it is month to month and you can be evicted in 24 hours)

Go to your local municipality and see if there are any landlord/tenant guidelines for apartments and mamagers or owners. I wonder if there is something in there that says the landlord must give notice when wanting to enter rental property and that only for health or safety reasons, should enter your premises unannounced.

I'd plan on moving, anyway.

maxdancona
 
  1  
Reply Sun 20 Mar, 2011 08:38 am
First of all. Next time, make sure you have a written lease.

Second, you might want to speak with a lawyer. There are tenants rights groups in many states (in Massachusetts, where I live, they are quite powerful). You could probably find someone knowledgeable to talk to for free. Them going through your stuff is probably against the law (landlord/tenant law varies from state to state). Then again, it might not be worth it if they haven't done any real damages.

The advantage of your situation is that you can leave next month. You should be looking for another apartment now.
0 Replies
 
jammin87
 
  1  
Reply Sun 20 Mar, 2011 08:58 am
Thanks thats my plan starting on Monday, I've been doing my homework as to what to expect going into an actual written lease agreement. But yea I have definitely learned my lesson from this experience I definitely will not be making this mistake AGAIN! But again thank you all for your input.
0 Replies
 
PUNKEY
 
  1  
Reply Sun 20 Mar, 2011 12:27 pm
Any "lease" you could get would be a sub-lease from your buddy. HE/SHE has the written lease with the landlord, right?

So you are correct. You have no "rights" in this home. tthe entire affair is in control of the renter and the owner. You are neither.

If your buddy does not mind unannounced people rummaging inside the house, then there is nothing you can do about it.

Ask about putting a lock on your door.
0 Replies
 
BillRM
 
  1  
Reply Sun 20 Mar, 2011 04:03 pm
@PUNKEY,
Quote:
If you have a paper trail of your payments (receipts, cancelled checks) ,then any court would recognize that have a contract with this person. (But it is month to month and you can be evicted in 24 hours)


People seem to come up with their own laws and they state those laws as it they are written in stone.

You need to be served with an eviction notice and then you get to go to court where you can fight it.

There is no 24 eviction rights in the US and that apply even if you are just living with someone out of the goodness of their hearts with no rent agreement and no payments involved.

If you happen to order a girlfriend or boyfriend out of your home after they had been living there rent free, they can refused until you can go through the legal eviction procedures.

You do have rights until and if a court rule otherwise.
0 Replies
 
PUNKEY
 
  1  
Reply Sun 20 Mar, 2011 04:19 pm
Sorry - you MUST have a written lease for the court to get involved.

Eviction can only happen if the renter is doing 1) something that threatens health or safety 2) illegal activities 3) non payment of rent.

The person is served with a Notice to Quit (which announces that action is going to take place and states the reason for the eviction) Then 10 days later, the Eviction Notice is served. It give a time and date to go in front of a judge.

For non-payment, sometimes a payment arrangement can be worked out. If not, the landlord can ask the sheriff dept. to help move out the renter. Sometimes this is as long as 30 days later. So the whole process can take from 45 - 60 plus days.

No written rental agreeement or lease? 24 hour notice. Anything after that is trespassing. Police will help you get out.

I'm talking about Michigan, USA law.
BillRM
 
  0  
Reply Sun 20 Mar, 2011 04:31 pm
@PUNKEY,
Quote:
No written rental agreeement or lease? 24 hour notice. Anything after that is trespassing. Police will help you get out.


Bullshit for example in the state of Florida you need to serve the person an eviction notice and then take him or her to court with a written lease or without a written lease and no police officer will help you out without an eviction order sign by a judge.

http://www2.fiu.edu/~caj/landlordtenantinformation.htm

FLORIDA'S LANDLORD/TENANT LAW


Questions concerning landlord/tenant rights are one of the top five areas of inquiry in the City's Consumer Affairs Division. Most people living in leased apartments and other rental housing know there are laws dealing with landlord/tenant relationships; but they often don't find out the details until there is a problem.

The following landlord/tenant information is provided to answer many of the questions frequently asked regarding landlord/tenant rental relationships, according to Florida's Landlord/Tenant Law (Chapter 83, Part II).

You may download the law for review by entering the "Frequently Asked Questions" feature on the Division's Home Page. Consumers may also receive a free copy of the law or a Florida Department of Agriculture and Consumer Services brochure entitled "Florida's Landlord/Tenant Law", by contacting the Division at 630-3667.


BEFORE YOU RENT


* When searching for a rental dwelling, be careful when leaving a deposit to hold
an apartment for a short period of time, in order to shop around for other
possible dwellings. If the property manager says the deposit will be returned
whether you decide to rent the apartment or not, always get that verbal promise
in writing.

* Make sure you have reviewed your rights and obligations as a tenant, and the
rights and obligations of the landlord, according to Florida's Landlord/Tenant
Law (Statute 83, Part II).


* Although Florida law does not require a written lease, you should request a
written lease that clearly states all the terms. Oral leases are subject to misunder-
standings and are more difficult to enforce.

* If there is no written lease, the span of your rental payment (weekly, monthly,
etc.) determines the length of the agreement.

* Before signing a rental agreement make sure you understand the terms of the
contract. If you don't understand, don't sign the lease!!! There is NO required
grace period for canceling leases, so if you sign, you are bound to the agreement.

* Before signing a rental agreement always conduct a preliminary walk-through in
the actual premises you intend to rent, so as to identify any problems that should
be fixed before you rent. Verbal promises made by the landlord to fix the
identified problems, should be included or attached as a written agreement to the
lease, and signed by the landlord.

* A damage deposit (security deposit) is one of the most common requirements of
landlords. At time of your pre-rental walk-through with the landlord, you should
make note of damaged items or areas, worn rugs, broken fixtures, etc., and give a
copy to the landlord. Keep a copy for your files. This may eliminate or minimize
disputes later.


THE LANDLORD'S RESPONSIBILITIES


* Florida Statutes, Section 83.51, require a landlord to comply with the local
Property Maintenance Code. This means:

1. The roof must not leak.
2. The walls must be weather-tight, and in good repair.
3. The stairs must be safe for normal use and maintained in good repair.
4. Windows and doors must be basically weather-tight, water-tight, rodent-proof,
and kept in sound working condition. Outside doors have to have proper
locks.
5. Window panes cannot have cracks and holes. Outside windows must have
screens.
6. Inside floors, walls, ceilings must be basically rodent-proof and kept in sound
condition and good repair, and should be safe.
7. The house or apartment must have hot water, which is connected to the
kitchen and bathroom sinks, tub or shower.
8. All houses or apartments must have a flush toilet in good working condition.
9. When cooking and heating equipment are provided by the landlord, they must
be safely installed and in good working order.
10. There must be adequate garbage disposal facilities or garbage storage
containers.
11. Every habitable room must have at least two separate floor or wall electric
outlets and, additionally, every kitchen, bedroom, bathroom and hallway
must have a ceiling or wall-type fixture, or an outlet controlled by a wall
switch near the entrance to the room.
12. All electrical systems must be in good repair and good working order.


IF THE LANDLORD DOES NOT COMPLY


* If your landlord has failed to comply with the previous listed code responsibilities,
and has ignored your request to undo their unlawful action, you can contact The
Code Enforcement Branch of city or county in which you reside and
request that they contact your landlord and explain that their action is illegal and
violates your local code.

* If your landlord fails to do what the law or lease requires, you may be able to
withhold the rent. You must give notice of your intention by certified mail at
least seven days before the rent is due to allow time for the landlord to remedy
the problem. If the problem is not corrected within seven days and you withhold
the rent the landlord may take you to court to collect it. You must them pay the
rent into the court registry pending the judges determination of the case.

* Always call the Consumer Affairs Division in your city or county regarding your landlord/tenant rights before withholding rent!!!


RENT WITHHOLDING FROM LANDLORD

* You must be very careful to do what the law requires for a proper rent
withholding!!! ALWAYS call the Consumer Affairs Division of your county
or city regarding your landlord/tenant rights before withholding your rent.

* If your landlord will not fix a condition which is in "material non-compliance"
with the your local city or county property maintenance code, you may stop paying rent
(rent withholding). Material non-compliance means that there are major
problems in your house or apartment which your landlord refuses to fix.

* Under Florida law, you cannot do the repairs yourself and then deduct that cost
from your rent.

* You can do a rent withholding so that you are protected by the law by taking the
following steps:

1. Make a written complaint to your local city or county enforcement office.


2. Make a list of all the things which are wrong with your rental unit and violate
the local code (for example, plumbing not working, roof leaks, etc.).

3. Write the landlord this letter:

Date

Dear (name of landlord):

Pursuant with Florida Statutes, Section 83.60, I am notifying you of your
material non-compliance with Florida Statutes, Section 83.51(1), and the
(insert the name of your local code).

Unless the listed repairs are made within 7 days of delivery of this notice,
I will not pay rent, because of your failure to maintain the premises.

List all things that are wrong

Sign you name ___________________
Print your name and address.

4. Mail or deliver this letter to your landlord at least seven days before the
next rent is due. *It is recommended that this letter be sent certified mail,
return receipt requested. This is an extra protection for you in the event
the landlord denies he ever knew about the material non-compliance.
KEEP A COPY OF THE LETTER.

5. You must save the rent as it becomes due. Do not spend it, because, if the
landlord fixes the house or apartment, you must pay him at least a portion
of the rent, and, if he tries to evict you, you must deposit all of the money
you have saved with the court until the eviction case is over.


THE TENANT'S RESPONSIBILITIES


* Florida Statutes, Section 83.51, require a tenant to comply with the local
Property Maintenance Code. This means that the tenant must:

1. Keep the house or apartment in a clean and sanitary manner.
2. Remove all garbage from the house or apartment in a clean and sanitary
manner (for example, use garbage cans).
3. Keep all plumbing fixtures in the house or apartment used by the tenant
in a clean and sanitary manner and in good repair.
4. Properly use and operate all electrical, plumbing, sanitary, heating,
ventilating, air conditioning and other facilities and appliances,
including elevators, which are in the apartment or house.
5. Not destroy, damage or in any way misuse the property itself. This
includes not permitting any tenant's guests to do so either.
6. Not remove anything from the house or apartment which does not
belong to the tenant (for example, cannot remove light fixture which
was in the property when tenant moved in).
7. Conduct themselves and require anyone who visits them to act in a
way that does not disturb the peace.


TENANTS FAILURE TO MEET LEASE OBLIGATIONS


* Except for the failure to pay rent, a landlord must notify you, in writing, of the
shortcoming and give you seven days to correct the situation. If you still have not
complied after seven days, the landlord can begin the eviction process.


EVICTION


* The eviction notice is the landlord's request or formal demand made to the
tenant. It asks the tenant to move out. It is delivered to the tenant only, and
is not filed in court.

* If the tenant does not voluntarily move as requested by the eviction notice, the
landlord may file an eviction case in court. The eviction case is the landlord's
request or formal demand made to the County Court. It asks the Court to evict
the tenant.

* The request is made in a Summons and Complaint, which is delivered to the
tenant by a process server.

* The tenant has five business days to file a written answer to the Summons and
Complaint or he/she will be evicted.


TENANTS FAILURE TO PAY RENT


* The landlord must serve you, the tenant, a written notice allowing three days
(excluding weekends and legal holidays) for you to pay the rent or move. If
you do not pay rent or move, the landlord may begin action to evict you.

* In order for the landlord to gain payment of the rent or possession of the dwelling,
he must file suit in county court, and provide the court with a copy of the three
day notice.

* If the court agrees with the landlord, it will notify you in writing. You then have
five days (excluding weekends and legal holidays) to respond, also in writing,
to the court.

* If you don't respond or a judgment is entered against you, the clerk of the
county court will issue a "writ of possession" to the sheriff who will notify you
that you will be evicted in 24 hours.

* You have the right to stay in your apartment until the landlord files an eviction
case and a judge decides your case. The landlord must deliver an eviction notice
before he can file an eviction case. The landlord cannot put you out unless he
wins the eviction case in court.


OTHER TYPES OF EVICTIONS


* Under certain circumstances, if the tenant has exhibited a lack of consideration
for the rights and privacy of others, a landlord has the right to require a tenant
to move with very little notice.

* In some cases (destruction, damage, misuse of property, unreasonable
disturbances), the landlord does not have to give you the opportunity to cure the
problem and may terminate your tenancy by giving you a seven-day written
notice.


LANDLORDS CAN'T JUST THROW YOU OUT!


* Only a judge can order you evicted, and only the Sheriff can put you out of your
home! (See "EVICTION" feature)

* Florida law does not allow a landlord to force a tenant out by:

1. Shutting off the utilities or interrupting service, even if the service is in the
landlord's name.
2. Changing the locks or using a device that denies the tenant access.
3. Removing the outside doors, locks, roof, walls or windows (except for
purposes of maintenance, repair or replacement).
4. Removing the tenant's personal property from the dwelling unit unless
action is taken after surrender, abandonment or a lawful eviction.

* A landlord may not evict a tenant solely in retaliation for the tenant
complaining to a governmental agency about a code violation, joining or
establishing a tenant's "union" or similar organization, or asserting other
tenant rights.

* If any of these occur, the tenant may sue for actual and consequential damages
or three month's rent, whichever is greater, plus court costs and attorney's fees.


WHEN YOU DECIDE TO MOVE


* When you decide to move from the rental dwelling don't forget to give the
required notice! Be sure to check your lease agreement for the specific time
period that is required for appropriate notification to terminate the lease.

* If a specific time period is not included in your lease agreement, the table below
indicates an appropriate notification time period to provide written notice:



Payment Schedule Days of written notice required
(before contract termination)

Weekly 7 days
Monthly 15 days
Quarterly 30 days
Yearly 60 days



* Send all correspondence relating to your intention to move to the landlord by
certified mail (return receipt requested) or deliver it by hand and insist on
a receipt.

* It is a good idea to talk with the landlord in person, if

0 Replies
 
BillRM
 
  1  
Reply Sun 20 Mar, 2011 04:35 pm
@PUNKEY,
Quote:
I'm talking about Michigan, USA law


I would love to see your link to any Michigan law that allow you to get the police to kick out a month to month renter without a judge signing an eviction notice!

And in 24 hours no less as in real world try a few months before you can get a court to sign off on an eviction notice.
0 Replies
 
BillRM
 
  0  
Reply Sun 20 Mar, 2011 04:42 pm
@jammin87,
Here is the Michigan law and there is no 24 hours and no judge needed eviction.

http://www.michiganlegalaid.org/library_client/resource.2005-05-29.1117417901385/html_view

EVICTIONS FOR TERMINATION OF TENANCY
Brief overview of the eviction process for Michigan renters whose tenancy is being terminated



Q. How will I know if my tenancy is being terminated?

To start an eviction, a landlord must send the tenant a notice. There are several different ways to be evicted. The type of notice that your landlord sends you will tell you why your landlord thinks he has a right to evict you. If the paper that your landlord has sent you gives you thirty days to move, your tenancy is being terminated. Typically, the notice that your landlord sends will say "NOTICE TO QUIT/TERMINATION OF TENANCY" at the top but may be a simple letter stating that you have thirty days in which to move. If you have a different notice, please see our other page, Evictions For Nonpayment of Rent.


Q. So I've gotten a Notice to Quit -- what happens now?


The first thing to know is that even though your landlord has given you a Notice to Quit, you don’t have to move out right away. You have the right to a hearing, and your landlord must take you to court to evict you. If your landlord changes or threatens to change the locks, contact the police immediately. You should also call an attorney. A Notice to Quit is simply a thirty day notice that your landlord wants possession of your apartment once the thirty day period has expired. If you have a month to month tenancy, you may want to move by the end of the thirty day period. Please consult an attorney to discuss the specific facts of your case.


Q. What happens if I haven't moved by the end of the thirty days?


After waiting the thirty days stated in the Notice to Quit, the landlord can bring an eviction suit in district court. To begin the lawsuit, the tenant must be served with a summons and complaint.

A summons is issued from the court. It tells you that you are being sued. It will also tell you the day and time to be in court.

The complaint is the landlord's side of the story. It will state that your tenancy has been ended and list any back tent that the landlord says that you owe.


Q. Well, I have a summons and complaint -- now what?


A tenant who has a summons and complaint needs to seek help from an attorney or other qualified professional right away to help the tenant answer the complaint.


Q. Answer -- what's that?


An answer is a piece of paper or verbal statement in court in which the tenant (you) tells his or her side of the story, including any defenses. Defenses are the tenant's legal reasons why the landlord should not be allowed to evict him.

The types of defenses that are available depend on the type of housing you have. If you have a lease, are in public or subsidized housing, or own or rent a mobile home, you may have additional defenses.

Tenants who rent month to month -- that is, have no lease and pay the rent every month -- can be evicted for no reason. It may be that the landlord just wants to get his property back. You don't have to do anything wrong to be evicted. However, there are defenses to termination evictions. An example of a defense is that your landlord is evicting you for asserting a legal right such as calling the building inspector. Another defense is that your landlord did not give you a full month's notice. There are other defenses than those listed here, and you should contact an attorney to see if any apply to you.

Q. The landlord is also asking for money in the eviction suit -- what should I do?

Sometimes a landlord asks for money in an eviction suit under the heading "supplemental complaint". You should look at the back rent amount carefully and see if you owe the money. You may also have defenses to a suit to collect rent. An example of a defense is that you have been withholding money to force the landlord to do repairs. Again, there are more defenses than those listed here. Contact an attorney to see if you have any other defenses.

Q. I've heard that I can't be evicted if I have kids or if I am pregnant, is that true?

No, that's not true. You can be evicted even if you have kids or are pregnant.


Q. After I get my summons and complaint, what's next?


You will have a hearing in front of a judge on the date and at the time listed on the summons. You should go to the hearing even if you and your landlord have reached an agreement. If you are not at the hearing, you can't be sure that your landlord presented the agreement the way you wanted it or that your landlord presented any agreement at all. Get any agreement between you and your landlord in writing.


Q. What happens after the hearing?


Well, if the court finds that you have no defenses, you must move within ten days.


Q. What happens if I don't move by the tenth day?


If you don't move by the tenth day, a writ of restitution can issue. This is very serious. A writ is an order from the court that gives the County Sheriff permission to physically remove the tenant and all of the tenant's possessions and place them onto the street. This can be done immediately and there is no requirement of any warning by the sheriff. The sheriff is not required to give you any additional time.

To learn more about housing rights in Michigan and where to get help:


Consult the Michigantenants.org website for local housing resources and tenant couseling services


Consult the Michiganlegalaid.org website for legal education articles and local service information.


If you received court papers or otherwide need free or low cost legal advice:


Visit Michiganlegalaid.org and search for local assistance by entering your zip code in the box marked "Find a lawyer, organization or related service to help you with your problem."


Contact the Michigan State Bar Lawyer Referral Service at (800) 968-0738.


Persons age 60 or older, regardless of income, may be able to receive free legal advice from the Legal Hotline for Michigan Seniors by calling (800) 347 5297.



This article appears courtesy of Legal Services of South Central Michigan.





0 Replies
 
maxdancona
 
  1  
Reply Sun 20 Mar, 2011 05:54 pm
@PUNKEY,
Quote:

No written rental agreeement or lease? 24 hour notice. Anything after that is trespassing. Police will help you get out.


This doesn't appear to be true.

There are several legal sites in Michigan that state that with no written lease is the same as a month to month lease. This means the landlord needs to give a month notice and go through the proper procedures.

http://courts.co.calhoun.mi.us/quest712.htm

0 Replies
 
PUNKEY
 
  1  
Reply Sun 20 Mar, 2011 07:00 pm
I worked 10 years at an outreach center. We helped people thru the eviction process. I will stand by what I printed.

You'd be surprised how many "couch surfers" and brother-in-law's second cousins were escorted out of the house because they wore out their welcome. No lease, no rental agreement. It becomes a trespassing issue.
BillRM
 
  0  
Reply Mon 21 Mar, 2011 03:09 am
@PUNKEY,
Quote:
You'd be surprised how many "couch surfers" and brother-in-law's second cousins were escorted out of the house because they wore out their welcome. No lease, no rental agreement. It becomes a trespassing issue.


If such was done, it was done illegally and there is one hell of a possible lawsuit waiting for against both the owner/renter and the police department.

Guess you might get away with a lot when you are dealing with a poor person that does not know his or her rights but it you hit that one in a hundred that does know his or her rights it going to cost you and the local police department one hell of a lot of money. False arrest, and false eviction under the color of the law just to start with and should be good for a hundred thousands or so at a guess.

My reaction in any case would be to stated in such a situation to the police that I am a legal tenant under Michigan law and this is a civil matter not a criminal trespass matter and I am more then willing to be arrested before I will be willingly evicted illegally and we will let the courts decide who is right afterward.


0 Replies
 
BillRM
 
  0  
Reply Mon 21 Mar, 2011 04:11 am
http://www.lib.niu.edu/1995/im950827.html


THE ROOMMATE FROM HELL:
WHAT IS A MUNICIPALITY TO DO?
By Jeffrey D. Greenspan and Stewart H. Diamond
Before a police officer or other municipal official tries to help in a land-lord or roommate possession fight, he or she needs to know the difference between a valid arrest for criminal trespass and an unconstitutional eviction of a person for refusing to leave a property where that person has some right to remain. The courts have broadened the protections of persons with even slim rights in property and now require a civil lawsuit to be brought under the forcible entry and detainer statute1 to evict the "roommate from hell."

Many times, in today's world, a municipality is called upon to resolve disputes between individuals growing out of the vast variety of modern living arrangements. These disputes sometimes come to elected officials or managers and administrators who are asked to provide police assistance. Often the problem is presented directly to the police department.

Surprisingly, Illinois law provides that a peaceful person with an arguable claim to being an occupant or resident of a premises cannot be thrown off of the property or be arrested merely on the complaint of the owner or other occupant of the premises. For a police officer to do so could subject that officer, and perhaps his or her community, to a lawsuit for false arrest under state law and perhaps a federal civil rights lawsuit as well.

Below are several fact patterns which a police officer in any municipality could face on a routine basis. Understanding the legal rights of the parties will assist your police department in understanding the difference between the crime of criminal trespass where an arrest can be made, and an eviction, where the courts and not the police have the final say.

Scenario #1:
John and Lisa live together. The lease is only in Lisa's name and John has lived with Lisa for six months. John pays one-half of the rent and one-half of the utilities but is not a party to the lease. An argument begins and police respond to the scene. Lisa wants John removed immediately due to their not getting along. John says "No, I pay one-half of the rent."

Scenario #2:
Brian and Tom live together. The lease is only in Brian's name. Tom does not have a job and Brian pays all the bills. Brian and Tom have a quarrel and Brian wants Tom removed immediately. Tom does not want to leave and Brian states that he will sign a complaint for trespass.

Scenario #3:
Karen and Hunter live together in Karen's single-family residence. Karen owns the home. Hunter has lived with Karen for two months and has placed some furniture and appliances in the home to assist in the furnishing of the home. Karen and Hunter had a heated fight after Karen discovered Hunter was cheating on her. Hunter stated that he would not leave and Karen wants him removed.

Scenario #4:
Mary and Al have been dating for several months. Mary lives in an apartment with the lease only in her name. Al lives in an apartment in a nearby building. Al spends many weekend evenings at Mary's apartment. Al and Mary have a domestic dispute early Sunday morning. Al is asked to leave by Mary but refuses to do so. The police are called by Mary.

In each of these scenarios the police are called to help resolve a domestic dispute and are asked by the sole leaseholder or owner of the premises to have the other person removed from the premises and arrested. The sole leaseholder and owner is willing to sign a complaint for criminal trespass. Can the officer lawfully arrest these individuals for criminal trespass?

Under Illinois law, criminal trespass to real property is defined as follows:


§ 19-4. Criminal trespass to residence, (a) A person commits the offense of criminal trespass to a residence when, without authority, he knowingly
August 1995 / Illinois Municipal Review / Page 27


--------------------------------------------------------------------------------


enters or remains within any residence, including a house trailer. For purposes of this Section, in the case of a multi-unit residential building or complex, "residence" shall only include the portion of the building or complex which is the actual dwelling place of any person and shall not include such places as common recreational areas or lobbies.2

(Emphasis added.)

§ 21-3. Criminal trespass to real property, (a) Whoever enters upon the land or a building, other than a residence, or any part thereof of another, after receiving, prior to such entry, notice from the owner or occupant that such entry is forbidden, or remains upon the land or in a building, other than a residence, of another after receiving notice from the owner or occupant to depart, commits a Class C misdemeanor.3
Illinois law provides that where, at the request of the owner, an individual refuses to leave an apartment or house and reasonably claims to have a right to occupy some or all of the premises, that individual cannot be arrested for criminal trespass. This is true even where the owner provides other competing documents which show that he or she seems to have the right to exclusive possession or ownership of the property.

Illinois trespass statutes must be compared with the Illinois Forcible Entry and Detainer Statute which prohibits the seizing or taking of land by force. That statute provides:


§ 9-101. Forcible entry prohibited. No person shall make an entry into lands or tenements except in cases where entry is allowed by law, and in such cases he or she shall not enter with force, but in a peaceable manner.4
This statute prohibits the seizing of real property by force even by a law enforcement officer. It allows for the entry and regaining of real property in only a peaceable manner as provided under the statute. The concept of a "peaceable manner" means with a court order entered in a case where the person to be evicted had an opportunity to appear and argue his or her case. In this context the "seizing of real property" not only means the case of a landlord with a shotgun but also the actions of a disappointed and angry domestic partner or roommate. The forcible entry and detainer statute is based upon the long-established public policy that violence and even bloodshed could result from individuals using force and violence rather than the action of the sheriff under an eviction order to regain possession of real property even if possession is rightfully theirs.5

Without that eviction order, police officers cannot lawfully provide assistance even if it is only in the form of acting as a guard while watching an owner evict a tenant, roommate or other person with a claim to possession. Nor can the police arrest the individual who refuses to leave for criminal trespass on a complaint signed by another claiming the exclusive right to possession.

In the absence of factors which will be discussed later, a police officer must know that he or she does not have the right to make a legal determination as to who has a right to possess real property. That decision can only be made by a judge. By assisting someone in this manner, the officer could be sued for common law false arrest and for an illegal seizure under the Fourth Amendment of the U.S. Constitution.6

The facts of one case will help explain the difference. In People v. Evans7, a woman advertised for a housemate to live in her home for rent. The housemate paid a security deposit, but refused to sign a lease. After two weeks and continuous demands by the owner to have the housemate sign a lease, the owner asked the housemate to leave. The housemate refused and the police were called. When the officers arrived and questioned the housemate why she refused to leave, she did not answer or provide any information. The housemate was arrested and the homeowner signed a complaint for criminal trespass. The trial court found the defendant guilty.

The Appellate Court, however, held that the individual who had moved into a house as a housemate,

Page 28 / Illinois Municipal Review / August 1995


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paid a security deposit and was asked to sign a lease by the owner, but refused to do so, could not be charged with criminal trespass. The court held that the sole remedy for determining a right of possession is found in the Forcible Entry and Detainer statute. The court went on to hold that criminal trespass is inappropriate where the person being arrested has or had any credible argument claiming to have a right of possession to the real property. In effect, the court said that the criminal justice system may not be used as a mechanism for circumventing the civil process of a Forcible Entry and Detainer action.

A similar conclusion was reached in the case of City of Quincy v. Daniels.8 There a mother had allowed her son to remain on the premises for which she had a lease. Despite the fact that the mother vacated the premises, the son remained with the permission of his mother over the objection of the owner of the premises. The court held that it was inappropriate for the city, even under its local home-rule ordinance, to charge the defendant with criminal trespass. The court held that criminal trespass cannot be used to settle a dispute over the right of possession of land.

In both Evans and Daniels, the criminal defendants were occupants of the premises from which they were arrested for criminal trespass. An occupant of a premises cannot be charged with criminal trespass and any claim of right for possession can only be heard under the Forcible Entry and Detainer statute in a civil, not a criminal court. Therefore, if an individual is an occupant and claims a right to possession to the premises, or a part of a premises for which he or she demonstrates evidence, i.e., a significant amount of clothes in closets or drawers, furniture, rent receipts, mortgage payments, etc., he or she cannot be arrested for criminal trespass to land or to residence.

One may ask if the law has lost all sense of reality. It has not, for if this unwanted live-in friend or roommate is abusive or begins destroying the apartment or home another set of legal rules apply. In that case, the law allows a police officer to arrest that individual for any other type of offenses such as disorderly conduct, or any of the criminal offenses that may bring the police to the scene. Certainly, where the disputes involve more than just a question of possession of property, but also involve threats or acts of personal harm, the officer can look to other parts of the criminal code to control the situation. Once released from arrest on those other grounds, that individual still has the right to return to the premises unless there is some court order preventing his or her right to return, such as an order of protection or an injunction. The police are free to inform the owner of the premises of the existence of these other remedies and can testify in court in support of this relief.

Let us return to the four beginning scenarios. In the first three cases, none of the individuals could be arrested for criminal trespass. In scenario #1 John paid half the rent and paid half the utilities and clearly was living in and occupying the unit. In scenario #2 Brian and Tom lived together and even though Tom's name is not on the lease and he pays no bills, he has been occupying the unit under an agreement "with Brian." For Brian to have Tom removed he must file his own civil action. In scenario #3 Hunter also has lived in the premises by placing furniture and appliances in the home and has a possessory claim to part of the home. If Hunter were to state to the officer that he did not have any interest in residing in the residence, then he might be charged with criminal trespass. If however, he does claim a right to be on the premises and demonstrates some evidence of this claim, the right of possession would need to be disposed of in a civil action and not a criminal arrest.

In scenario #4, Al was not an occupant or resident of the premises, nor was he in possession of all or part of the premises. He was merely a temporary guest who has been requested to leave the premises by an owner or occupant. If he failed to leave he could be arrested for criminal trespass.9

The potential liability to an officer and the municipality arises out of a claim for false arrest. That claim can be made in two contexts. Under state tort law, the officer and the municipality could be liable for false arrest if the arrest was made without probable cause and done with a deliberate intent to cause harm.10 In a federal civil rights action, the officer could be held liable if the arrest ("seizure") was not reasonable under the Fourth Amendment protection against unlawful search and seizure. The municipality might also be liable if it could be shown that this practice was an expression of municipal policy or that the officer had not been properly trained.

In Soldal v. Cook County, Illinois11, the U.S. Supreme Court held that Cook County deputy sheriffs could be held liable for an unreasonable seizure when they stood by to prevent violence when an owner of a mobile home park removed a trailer without an eviction order. The deputy sheriffs specifically declined to

August 1995 / Illinois Municipal Review / Page 29


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arrest tor criminal trespass on the basis that the matter was between the two parties and they were there simply to keep the peace. Nevertheless, the Supreme Court held this to be an unlawful seizure because the sheriffs knew the park owner did not have an eviction notice and did nothing to prevent the illegal eviction.

Recently, however, the Seventh Circuit has ruled in Gordon v. Degelmann12 that an arrest for criminal trespass which may be in violation of the Forcible Detainer Act does not rise to a Federal Constitutional Fourth Amendment Violation, so long as the officer has probable cause to make an arrest. In that case the plaintiff claimed an ownership interest but had no documents or evidence to support that claim. The court held that because the officer was not provided any information to support the plaintiff's claim of ownership, the office had reasonable grounds, i.e., probable cause to arrest under the Fourth Amendment for criminal trespass. The court system will protect police if they make reasonable judgment calls based on the facts presented. Where reasonable evidence of a right to remain on the property is ignored by officials, liability will likely result.

Both for public policy reasons and in order to prevent costly litigation it is important for police departments to train their officers to look and ask for details surrounding any dispute over possession. Elected or appointed officials who may set policy which governs these officers' actions must also be aware of these rules. Questions must be asked such as (1) whose names are on the lease or title, (2) how long the parties have lived together, (3) whose possessions are on the premises, (4) are there any pending court proceedings, (5) are there any other documents that relate to these parties' claims of possessions (letters, utility bills, driver's license, etc.). The need to ask these questions and to evaluate the facts may at times make this a tricky area of the law. With a little help from a municipal attorney or state's attorney, you can both enforce it and prevent individual officers and your community from being sued.

In summary, where an individual presents some reasonable evidence that he or she has a possessory or occupancy right to a property, a criminal trespass charge is inappropriate. This does not preclude officers from charging individuals with other types of of tenses involving their conduct while on the premises. The owner or other occupant of the unit can only free themselves from the physical presence of their former roommate, housemate, tenant, live-in lover or friend by bringing a civil forcible detainer action to have the other individual peaceably evicted from the premises.



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1 735 ILCS 5/9-101, et seq.
2 720 ILCS 5/19-4.
3 720 ILCS 5/21-2.
4 735 ILCS 5/9-101.
5 People u. Evans, 163 111. App.3d 561, 516 N.E.2d 817, 819 (1st Dist. 1987) citing Doty v. Burdick, 83 111. 473, 477 (1876).
6 Soldal V. Cook County, 111., _ U.S. _ 113 S. Ct. 538 (1992).
7 163 111. App.3d 561, 516 N.E.2d 817, 819 (1st Uist. 1987).
8 246 111. App.3d 792, 615 N.E.2d 839 (4th Dist. 1993).
9 People v. Brown, 150 111. App.3d 535,501 N.E.2d 1347 (3rd Dist. 1987).
10 745 ILCS 10/2-202.
11 _ U.S. _ 113 S. Ct. 538 (1992).
12 29 F3d 295 (7th Cir. 1994).

Page 30 / Illinois Municipal Review / August 1995

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0 Replies
 
PUNKEY
 
  2  
Reply Mon 21 Mar, 2011 06:52 am
It's all clear as mud.

It would behoove the OP to sign a lease to remove all doubt - and get a lock on his door.

Thank you for your research.

.

0 Replies
 
ShayRedding
 
  1  
Reply Fri 25 May, 2012 01:48 pm
what do i do if landlord let someone us that not on my lease sign a document that i hold back pay on rent in time i what work argreement that i never knew about into i started working that they pay back pay and they what my lease and they agree to make paymet on and didnt know about it into i went to pay ,u first month of rent after i started working then that person no longer here now im stuck paying the agreement when i never sign anything about i agreed on it.. And person not on the lease,....now me my kids get evidted after all that money i have payed on it they say i still monthly rent...
0 Replies
 
 

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