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Illegal occupancy, subletting and unauthorized assignment may
be the most vexing and hazardous circumstance a landlord can experience.
It is not uncommon in Santa Monica.
An unauthorized occupant or guest, illegal sub-tenant or unauthorized
assignee who gains the status of legitimate tenant almost always
does so with no written agreement by which his right to occupancy
is defined and limited. This means that he can do many things
to which the owner might not otherwise have agreed such has having
pets and almost any number of mysterious roommates whose identities
the owner may never know. These circumstances can be more than
a little annoying when the neighboring tenants are complaining
about noise in the night and theft from their living quarters
and vehicles by people who are suspected as occupying your apartment
building.
This article consistently refers to "he". Do not be
misled by this. "She" is equally applicable.
The assignment of a tenancy is where the rightful tenant transfers
all his rights to occupancy of the premises to another person.
If this occurs with the written authorization by the landlord
who has investigated the qualifications of the assignee and approved
him, there should be no problem. A subletting is where the rightful
tenant takes in a roommate and receives rent from him. The legitimate
tenant (sub-lessor) may or may not continue to live in the unit.
If he does, he will usually take measures to conceal the presence
of the sub-lessee. If he does not, he usually does whatever he
thinks will preserve his ability to live there again if he chooses.
Again, it this occurs with the written authorization by the landlord
who has investigated the qualifications of the assignee and approved
him, there should be no problem. An unauthorized occupant or guest
is a person who is staying at the premises for an extended period
of time as though the premises were his home. Generally he is
not thought of as paying rent to anyone for the privilege of occupying
the premises, yet he may be. During his occupancy, the legitimate
tenant may or may not be sleeping at the premises. The combinations
of factors are without limit. The important thing is, if the lease
provides for certain named people exclusively to reside at the
premises and an unauthorized other person is staying there, a
significant potential problem exists and an attorney should be
consulted immediately. No rent should be accepted until the matter
is resolved.
A tenancy by operation of law or an implied in law tenancy may
be created when the owner accepts rent for a unit with actual
knowledge that the unauthorized assignee, unauthorized sub-lessee
or unauthorized occupant, is living at the premises. Also, a court
can hold that the owner has "waived" his right to object
to the presence of the unauthorized person. "Waived"
means that the contract right is forever lost. Lastly, a court
may hold that the owner is "estopped" from enforcement
of the written rental agreement. "Estopped" means that
the court will not help you. These circumstances can and do occur
even then the smartest and most experienced owners have excellent
written agreements covering every unit at the premises, especially
in Santa Monica.
Here are a couple of examples of actual cases where the writer
has handled the evictions of illegal subtenants and unauthorized
occupants in recent weeks.
First Example: The Santa Monica tenant purchased
and moved to a condominium elsewhere. Then, without informing
the owner, the tenant advertised the Santa Monica apartment in
a local newspaper and, after first demanding and receiving a hefty
"key fee", rented the Santa Monica apartment to a stranger
from a foreign country who then tried to pay rent to the owner.
Had the owner accepted the rent, the stranger would hen have been
a tenant by "operation of law." The stranger could enjoy
an "implied in law tenancy" for the balance of his life.
Then new tenant could have pets, have roommates, etc. because
there would be no written rental agreement prohibiting the same.
Second Example: The legitimate tenant informed the
owner that he had a temporary work duty in another state and that
this friend (or relative) would be "house sitting" for
a couple of months. While there may or may not be pets or indoor
plants to tend, that is often an excuse for the need for the house
sitter. Had the owner accepted rent from either the legitimate
tenant or the house sitter, a new tenancy by operation of law
could have arisen in favor of the stranger. A variation of this
is where the legitimate tenant doesn't leave but simply has a
"house guest" for a "few days" which conveniently
coincides with the date on which the rent is paid. On several
occasions in Santa Monica when the legitimate tenant has passed
away (died) either a friend or a family member has claimed the
right to possession and tried to entice the owner to accept rent.
This happens notwithstanding that when the owner received notice
of the death of a month-to-month tenant, the rental agreement
is automatically terminated; and the tenant's heirs have no tenancy
to inherit, although a valid assignment by the deceased will permit
the assignee to remain on the premises until 30 days have passed
since the last rent payment.
The fair weather, beach, and lower rents of Santa Monica make
the problems of unauthorized occupants, etc., greater problems
here than in other communities. The price of maintaining control
of your residential rental properties in Santa Monica is "eternal
vigilance"! That is what this writing is all about. How do
you keep informed about events that are occurring almost daily
in your rental units especially if you do not have a resident
manager? There are many answers.
Part II Next Month - "How to Solve the Problem".
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