As always, before reading this post please review my disclaimer by following the link above or by clicking on this link. As always, the legal principles discussed apply only to the Commonwealth of Virginia.
Introduction
Our generation - "millennials," those born between 1980 and 2000 - has been referred to on occasion as the "boomerang generation" due to the high number of us who go off to college and grad school only to come home and live with our parents. The unfairness of that derogatory term - after all, it's the economy that our parents' generation created that is causing this - aside, the fact is living with your parents past adulthood actually creates some fairly complicated legal issues.
Once you turn 18, you no longer have an inherent "right" to live in your parents' house. However, if you do not have another place that you live, and your parents' house remains your residence, your parents also do not have an inherent "right" to dump your things on the street, change the locks and have you arrested for trespassing if you come back. This is because the moment you turn 18, if you are still living with your parents, you become a "tenant."
Now, if you are an astute reader of my blog, you've already read my article from May about what set of laws is applicable to what kinds of tenancies. As I stated in that post, any tenancy has a lease, even if you don't know it. In most cases, when living with your parents, the lease is neither oral nor written, but rather implied. In other words - you get to live there as long as your parents don't decide otherwise. It's important to note, however, that this situation does not just come up between parents and children. If you let your sibling, boyfriend or girlfriend, or anyone else actually move in with you, without demanding anything in return, you have an implied lease stating the same thing.
What this all means is that if the relationship or living situation goes bad, the legal issues are complicated, and usually neither side recognizes their own rights or responsibilities. This blog post will attempt to clear up what rights each party has in such a situation, and what responsibilities.
What Is a Tenancy at Will?
Again, going back to my blog post from May, you will notice in the list of leases excluded from the Virginia Residential Landlord and Tenant Act is "occupancy by a tenant who pays no rent." So clearly Virginia law recognizes such a thing, and it is governed by the Common Law. In the Common Law a tenancy where the tenant pays no rent is called a "tenancy at will." Much like "employment at will," a tenancy at will is a tenancy which the landlord may terminate at any time, for any reason.
So, if you live with your parents and don't pay rent, you are a tenant at will. The same is true if you live with your boyfriend or girlfriend at his or her house and also don't pay rent. The same is true with any other situation where one person is living at another's house without paying rent as well. This means that if the relationship goes bad, all that needs to happen is that the "landlord" tells the "tenant" "ok, that's it, you're not allowed to live here anymore." Once that happens, the "lease" is terminated and the tenant must move out.
Now, that sounds very simple, and what I said above is that this is complicated, so you recognize that there must be more to this, right? The complications I refer to above come when you ask the follow-up question - what happens if the "tenant" says no, and refuses to leave? Well, astute readers of my blog will again remember my blog post from earlier this month in which I discuss the dangers of "self-help." As I explain in that blog post, when a lease is terminated, but the tenant remains on the property anyways, a residential landlord does not have the right to simply take matters into his or her own hands and forcibly seize the residence. This rule is just as applicable to a tenancy at will as it is to any other residential tenancy. As a result, just because the tenancy has been terminated does not mean that the "landlord" can change the locks, dump the "tenant's" stuff on the street, call the police, etc. The landlord must get a proper eviction.
How to Evict a Tenant at Will
The eviction of a tenant at will runs about the same way as the eviction of any other tenant - you can just begin the process sooner, because you have no requirement for how long you must wait after giving notice that the tenancy is terminated. You can make the statement to the tenant at will that morning, and file your Unlawful Detainer action that afternoon. Heck, you can be standing in line at the courthouse, fill out the Unlawful Detainer complaint, call your tenant at will, terminate the tenancy, and then hang up and hand in the complaint. That would be a little extreme, but that's your right as a landlord in a tenancy at will.
From there, the case would proceed as any Unlawful Detainer would. Eventually you will have a return day, if the tenant appears to contest, you will have a trial, and if you win, then you can get a Writ of Possession which allows the sheriff's office to forcibly evict. Now, the danger here is that most tenancies at will are situations in which the landlord and tenant are both living in the same house at the same time, and the tenant may continue to be there while the Unlawful Detainer action is going on. If you fear violence or other retaliation from the tenant, it may be worthwhile to set up temporary residence elsewhere until the eviction is complete.
What If I Start Paying Rent?
Many people, especially adult children living with their parents, think they can get around tenancies at will simply by starting to pay rent. However, an offer to the "landlord" to pay rent is only that - an offer. They are in no way obligated to accept that offer, and if they do not, the tenancy remains a tenancy at will. If, however, they do accept that offer, then the change in your situation depends on the frequency of payments. If you are to pay every month, you have a month to month lease now, and it can still be terminated in the same way an any other month to month lease (30 days' notice). However, you also now have the responsibilities of a paying renter. If you miss a payment, your parents can now give you a 5 day pay-or-quit, and if you miss that, they can not only evict you, but can also sue you for your missed payments.
Can I Do Chores Around the House and Call it Rent?
Now we get into a trickier area. Virginia law does recognize rent that is "in kind" rather than cash, meaning you can pay your rent by doing things around the house. However, this is very, very difficult to prove. First, what you do must be done consistently - you need to be able to show that you are doing these chores every week, or every month, around the same time. Second, what you do must not be to your benefit - buying your parents groceries might count, but not if you bought any groceries for yourself at the same time; mowing the lawn does not count because you benefit from a mowed lawn as well; cleaning your room does not count, cleaning your parents' room might. There is an exception, though, to the strict rules regarding "in kind" rent. If you offer to your parents to do these things as rent, and they express their acceptance of that offer, then it would be rent even if you do get some benefit from those chores. However, you still need to do these consistently since, as above, failure to do so could result in a 5 day pay or quit, an eviction, and a lawsuit for "unpaid" rent.
Conclusion
Tenancies at will are a very common tenancy, especially today. Adult children living with their parents, a person moving in with his or her boyfriend or girlfriend, a sibling moving in with another sibling - the list of situations goes on. These tenancies, however, create legal rights and responsibilities for both parties that are often missed, and if a "landlord" in such a tenancy seeks to terminate that tenancy, the pitfalls can be many. If you are involved in a tenancy at will, either as a "landlord" or a "tenant" and need legal advice regarding the termination of that tenancy, eviction, or turning the tenancy into a rent-paying tenancy, please feel free to call (703)281-0134 or e-mail me at sleven@thebaldwinlawfirm.com to set up an initial consultation. The consultation is free for up to half an hour!
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