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ILLEGAL SUBLETTING, ASSIGNMENT, AND OCCUPANCY
By Harold E. Griffin, Attorney at Law


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".