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  1. #1
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    Sep 2015
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    Default How to Revoke Somebody's Access to a Home Before it Becomes a Tenancy

    My question involves landlord-tenant law in the State of: California

    I own a townhouse in central California, that I want to sell. Technically, it is a vacant property. My brother lives in northern California, where he and his wife own a house. I live in southern California. My brother's house is a lot closer to my property than where I am.

    My brother wants to buy a second house, in part, to relieve the stress of a troubled marriage. We have been trying to work out a deal where I sell him my house for several months now.

    About 45 days ago I agreed to give him early access to the house, so he could manage repairs that I agreed to have done while he pursues a the financing with a bank.

    We agreed that he could set up VERY minimal furnishing to accomodate him staying there multiple days/nights in a row.

    The understanding was that he could stay & work there during the week, and he would "commute" home to his property in the north on the weekends. I also agree that he could subscribe to internet access in his own name, and set up the computers he needed to so he could work from that location, while he manages the repairs.

    This was all verbally agreed to. We have no rental agreement. No money has changed hands. Meanwhile, I am paying 2K per month in mortgage and other payments.

    There are a variety of personal factors, which I won't reveal on a public forum, that lead me to now believe that he intends to simply take over my property and defy any of my own wishes to limit how my property is used before it is sold.

    Here are some factors that I can reveal. In 45 days:

    1) He did set up internet (and cable TV) immediately.

    2) He has not set up his computers adequately to do his job. According to his wife, he isn't even performing any meaningful work for his job at all; regardless of which house he is in.

    3) He has not taken even the most preliminary steps to schedule the repairs we agreed to have done.

    4) Since gaining access, according to his wife, he is not returning phone calls from the bank. My brother has been telling me that the bank will only discuss his loan in person, never by phone.

    5) Yesterday my brother said he wanted to move a couch into my house. I told him I didn't want him to do that. He made an excuse that he had to go, and hung up.

    6) Today I called him to follow up on the discussion about the couch. He said, "it's already in there." I told him that he has crossed a line by defying my expressed wishes. He hung up on me.

    7) One fear is that if my brother thinks I'm considering any action, he will have the locks changed, and force me to escalate from a legal standpoint.

    As I mentioned, he spends weekends up in his northern residence. I am contemplating driving up to my property on a weekend, changing the locks, moving whatever of his belongings I can lift by myself into the garage, which he will still have access to until he moves them.

    Questions:

    1) Is it really that simple?
    2) Do I have to evict him?
    3) Are there any "magical" time limits in California that I should be aware of? i.e., which would grant him tenant rights?
    4) What claim of access can he make to retrieve his couch? My inclination is to insist he give me a check to hire a moving company. I want to avoid a situation where I have to have him physically removed.

  2. #2
    Join Date
    Jun 2015
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    988

    Default Re: Revoking Brother's Access

    You are very quickly getting into quicksand and turning your brother into a tenant. Tenants have one whopping pile of rights in CA and can totally frustrate your getting it sold at what you think is fair market value

    I think you need to get off your duff and secure the place by any peaceful means possible PRONTO.

    The couch is the least of your exposures!

    Take your toothbrush and plan on staying to secure control.

    You can create a tenant at the drop of the hat if you are sloppy.

  3. #3
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    Sep 2015
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    Default Re: Revoking Brother's Access

    Thank you for your quick response.

    Do you know what kind of time limit I am facing where he is "legally" considered a tenant?

    Have I already surpassed that (about 45 days)?

    Any pointers (links) where I could find out?

  4. #4
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    Default Re: Revoking Brother's Access

    Quote Quoting infoneed
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    About 45 days ago I agreed to give him early access to the house, so he could manage repairs that I agreed to have done while he pursues a the financing with a bank.
    Were you paying him to perform the repairs, or was your proposal a barter arrangement whereby he would perform repairs instead of paying rent?

  5. #5
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    Jun 2015
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    988

    Default Re: Revoking Brother's Access

    The legal time limit to create a tenant can be a few seconds! I've been a LL for decades but not in CA.

    You are already in dark grey area ..depending on how your facts stack up.

  6. #6
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    Default Re: Revoking Brother's Access

    Quote Quoting Mr. Knowitall
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    Were you paying him to perform the repairs, or was your proposal a barter arrangement whereby he would perform repairs instead of paying rent?
    Our agreement was that he would pay for the repairs, and that I would discount the sales price to recognize that expense. If he couldn't get approved for financing, I agreed to reimburse him for those repairs out of the proceeds of an eventual future sale to someone else.

    We never discussed rental or payments, or repairs-for-rent, or anything of the kind. There was never an understanding (between he and I) that he was renting, and he knew (for tax reasons) that I did not want to turn that place into a rental.

  7. #7
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    Default Re: Revoking Brother's Access

    Your argument can either be that there was no quid pro quo -- that you were simply letting him live in your house, no strings attached, and now want him to move out -- or it can be that there was a quid pro quo, and that he's not living up to his obligations. You can't, however, successfully argue that there was no quid pro quo and that he's not doing the things he agreed to do in exchange for permission to live in the home.

  8. #8
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    Default Re: Revoking Brother's Access

    Quote Quoting Mr. Knowitall
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    or it can be that there was a quid pro quo, and that he's not living up to his obligations.
    This certainly seems to describe the situation. Does this make it a "tenants rights" issues?

    Edit: Not sure if I'm splitting hairs here, but we never agreed that he could "live" there. He could occupy the place during the week, and spend weekends at his own residence.

  9. #9
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    Default Re: Revoking Brother's Access

    It complicates things if you cannot reach a mutually acceptable resolution -- if you lock him out, he can potentially sue you for wrongful detainer and there's a chance that he'll be allowed back into the premises while you scramble to defend against his lawsuit from out-of-state.

  10. #10
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    Sep 2015
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    Default Re: Revoking Brother's Access

    Quote Quoting Mr. Knowitall
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    It complicates things if you cannot reach a mutually acceptable resolution -- if you lock him out, he can potentially sue you for wrongful detainer and there's a chance that he'll be allowed back into the premises while you scramble to defend against his lawsuit from out-of-state.
    NOTE: My brother, his property, my property, and I are all residents of California. Sadly, it is even more complicated than that. He no longer communicates by (or even reads) emails. If today's brief phone call is any indication, he is now no longer available by phone.

    Now that my brother is firmly in control of the property, and the flow of communication, there is quite possibly no one else on the other side of a conversation to even discuss what is reasonable. My brother has developed severe rage issues. That's one of the causes for the stress in his marriage. He has a so-called medical marijuana license, which, according to his wife, he exploits continually throughout the day in such absurdly high quantities it renders him virtually incapable of anything requiring even the slightest of cognitive focus.

    My past phone calls with him validate his wife's claim. He quite literally is a different person than the one I knew three years ago. If I do risk taking over the property, in his absence, his self-induced diminished capacity may well mean he is incapable of engaging or initiating a lawsuit. My fear is a very real concern that he will resort to violence; either against my property (to regain access) or his wife, or himself, or even me.

    Just paid a (reasonably priced) pay-for-expert answers (not advice) over the web. I wanted to update the forum with my recent findings.

    Since I am past the "magical" 30 day mark, even though his "residency" is off and on, he is considered a tenant, if he is not a buyer. Since I have no signed purchase agreement with my brother, he is not legally recognizable as a buyer, and is considered my tenant, and I his landlord, after 30 days (California). Since I have no written lease or rental agreement, he is considered a month-to-month renter. I will likely have to formally evict him, if I cannot get him to talk sense (or even talk at all).

    Sadly, this is consistent with the other replies on this thread. Your past replies are appreciated.

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