In a divorce what happens to the primary residence if multiple adult family members are currently living in it?

California btw.

Scenario is thus, two older married people are getting a divorce. One of them wants to sell the house immediately for profit, other wants to keep it as their extended family lives there currently and are paying rent. Extended family is one of their adult children, and two adult cousins of parent who wants to keep the house.

Does the spouse who wants to sell have to evict the adults out? Or can they simply sell the house and then naturally the adult children are forced to leave?

The co-owner of the house is owed their share. The divorce court judge will ensure that party gets their share. This doesn’t have to happen through the sale of the house if the money for a buyout can be obtained some other way.

From what I understand the house is the greatest asset the two parents work blue collar jobs and don’t own much besides everyone having a recently purchased vehicle.

California landlord/tenant law is generally favorable toward tenants provided they are up to date on rent payments, allowing an generous period for eviction when the property is sold to another party, even when there is only a word-of-mouth rental or lease agreement. For specifics you would need to consult a lawyer experienced in tenant rights but you could start by checking the NOLO website.

With regard to the partition of jointly owned property in a divorce, this is largely the provence of the court overseeing the divorce; generally the party who wants to retain property is required to renumerate the would-be seller to the tune of fair market value of the property, and if they cannot do so the house may be taken by the court and disposed of in whatever fashion adequately compensates both parties proportionally. The tenants and non-minor children relatives have no legal interest in the property (assuming that they aren’t on the deed or have leins against it) and thus have no say in the court judgement or disposition.


Yeah this is what I was thinking. What matters is whose names are the legal owners of the property, not who lives there.

As happened when my step-sister got divorced - both spouses own 50% in most states; so they figure out a way to pass title to one spouse, or sell it. The other spouse gets their 50% value in cash, of equity. So they remortgaged the house so she could buy out her ex-husband’s half. Fortunately, the kids were moved out. If there wasn’t 50% equity and there were no other funds available to pay the 50%, then presumably the house would have been sold and the proceeds split 50-50.

This is the key. Who owns the property? Who ends up owning the property? If it’s a duplex, or maybe a place with a basement apartment/suite, and the tenant is properly paying rent, then maybe formal landlord-tenant law applies. Most jurisdictions this requires a separated housing, i.e. separate entrances, separate kitchen facilities and bathroom, etc. Then there are protections and formal processes for evicting tenants, when they can be evicted, rent controls, lease renewals, amount of notice time, privacy, etc. Depends on the jurisdiction. (Some jurisdictions IIRC require a building with 4 or more separate units before the laws apply, some the laws don’t apply if the owner lives in the same building)

Generally a very different set of laws applies with shared facilities (like rooming houses, or renting out a room) where things like kitchen and bathroom are in common. It’s a lot easier to get the tenants out.

(I presume OP is wondering about a scenario where A divorces B and A gets the house, can they turf B’s extended family?)

True, but at least in my state, new owners take subject to the preexisting rights of tenants. If they had a year lease, for example, the new owners would have to honor that as a lease is a conveyance of part of the property. If there is no written lease, then it is considered a “tenancy at sufferance” a revolving month to month occupancy where 30 days notice of termination would have to be given by the new owners to the tenants.

The trope in movies and tv shows where tenants are evicted because the “landlord is selling the building” is not legally true anywhere I know of when the tenants have a lease.

New York, for example, had strict rent control laws. The Emperor of Turkey lived almost all his life in a large top-floor apartment in a Manhattan brownstone paying $300/month, and even when the roof caved in the owners could not evict him.

It is in Saskatchewan, in limited circumstances, and I think in other Canadian provinces, although you’re right it’s not a lease.

Residential property isn’t leased, in the land law sense. It’s a personal contract of residential tenancy that doesn’t give any interests in the land. Landlords can end that lease if they sell the building and the new owner wants to use it for their own residence, or the residence of a close family member.

The landlord can also end the residential tenancies if they’re going to demolish the building, or if they’re going to convert it to condos.

I vaguely recalled that was an issue in the Greater Toronto Area a while ago, that landlords would apply to evict people to do renovations. My mother knew some people who lived in a midtown old apartment building, and the place was emptied, and stood empty for years - presumably having claimed to do renovations, the landlord then wanted to either demolish it (It seemed to be 1930’s vintage) or turn it into expensive condos.

I believe the city council made that undesirable by basically refusing to allow condo conversions of rental apartments, and limiting demolition permits for rental housing (and you obviously needed the building vacated before applying for demolition). So someone would have to be willing to eat years of missing rents before they could proceed on any scheme. The housing market back then was not that hot.

What would happen if the adult tenants wanted to make the divorce as difficult as possible and made it clear that they would claim squatter’s rights and try to make themselves as difficult to evict as possible? In a state like California, it might not be easy to sell a house that has an adversarial tenant in it and say the house simply can’t be sold at a price the divorced partner wants. How does divorce court deal with something like this?

The spouse that wants to stay could purchase the other owner’s share from them. They then get to keep the house with their family members living there. It may require an appraisal and a refinance, but it could be a solution for both parties.

Again, my understanding with squatters is - they live there and the owner does not, in essence making them the tenants, rent or no rent. Or, they live in a subdivision of the house that is its own self-contained “apartment” living unit. Thus, eviction is no different legally than trying to evict a real tenant. The courts make this non-trivial.

My understanding with adults who live in the same house is that the owner can ask the other resident to move out, can change the locks, hire private security if necessary to enforce the eviction. The law looks very differently on people who share your house versus people who live in a house when you don’t. Usually the local version of the Landlord-Tenant Act does not apply to roomers.

(The law looks on things differently for a reason - for the tenant the home is his castle and you are not in it. For a roomer, the home is your castle - if for example the roomer is violent or thieving, a month’s notice may not be reasonable. )

The law may also look on roomers* differently that it does household members - and it’s not at all clear that an adult child and a couple of adult cousins would be roomers rather than household members. In my state, a relative living in a house who does not pay rent cannot be evicted through landlord-tenant court. An ejection action must be filed in Supreme Court ( which is the lowest level court with general jurisdiction). The ejection typically takes a longer period of time than an eviction.

* Although it’s entirely possible that the law treats someone renting a room or an actual roommate as a tenant and does not allow changing the locks , etc without an actual eviction proceeding.

IANAL but - Again - the distinction is whether the person has their own self-contained living space - bathroom, kitchen, separate entrance, etc. that person has their own domain, and then landlord-tenant rules apply.

Someone renting a room, is not a tenant in the same sense; but the catch is, there is an implied contract (or a formal one) when money changes hands. In the event of a dispute, the law can adjudicate contracts. There would be implied need for reasonableness - such as reasonable notice time. (Which may vary if the roomer’s behaviour is an issue?) Obviously, no such arrangement is intended to exist in perpetuity so the only question is how to end it. Some jurisdictions may have a separate law that applies to roomers.

Someone who is not paying rent, they are receiving a gift. The gift can be withdrawn at any time. Older kids get kicked out of the house all the time.

In either of these latter two cases, you can ask the person to leave, end the arrangement with reasonable notice, can change locks, etc. After all, it’s your house to do with as you like, unlike when it’s completely someone else’s living space. The police will not enforce this any more than they will be your bodyguard at your beck and call. However, once the person is out, they can enforce break-and-enter laws. So they won’t come and escort out your houseguest, but once that person has left for good, if they try to enter without an invitation, the police have grounds to arrest them.

OTOH, if you wait until Junior goes to work (or out drinking), then change the locks and spring the surprise on him he’s outta there when he gets back - the police or judge may not be as understanding to you as if he’d been given a month to figure things out. “Reasonable”.

Rules are different everywhere - and I’m certain in most cases the person voluntarily leaves when asked to . But in NY, if they don’t voluntarily leave, you can’t lock them out , regardless of whether they are renting a room or a separate apartment from you. You have to evict them. And if it’s a family member who is not a tenant , you have to file an ejectment action

We bought a four-plex from a pair of couples, one of which was divorcing. Instead of figuring out how to pay off the one person who wanted out, they sold the whole thing (by posting it on Craigslist without an address).

The tenants were adult children, a niece, and a family friend. None had written leases, but we fortunately didn’t have to go through any formal, legal evictions. Each eventually left in the face of having rent go from almost nothing to below market. One was leaving already, so we were able to move in without kicking anyone out.

If any of the tenants had fought leaving, the compete lack of paperwork or payment records from the prior owners would not have helped their case. They were effectively month-to-month in a place without rent control.

This is certainly wrong in my state, and I would think certainly wrong in every state. The owner would be subjecting himself to a civil suit for such actions. The law recognizes that a person cannot get a new home in moments. If a property owner allows someone else to make use of their property as a home, then the law provides extra protection than if you are ejecting a drunk guest from a party.

Hence the word “reasonable”. The law would indeed expect a person to find new accommodation in minutes if they were a demonstrable danger to the owner or liable to steal or significantly damage the place with the owner living there. Or the state would provide a (less desirable) form of housing.

But yes, otherwise a reasonable notice and time is expected - but to get back to the OP, they have no right to expect an indefinite stay going forward.

And also an ejectment proceeding in court. The owner cannot simply change the locks when the person is away. That is an unlawful eviction which could subject the owner to civil damages.