WHEN DOES A HOUSEGUEST BECOME A SUBTENANT?

The written rental agreement allowed the tenant to have a guest, but did not allow for any additional occupants. Assignment and/or subletting was prohibited. The Landlord had not seen the tenant for months but continued to send in a rent check every month. A different individual was residing on the property and claimed to be a "house sitter." Many months passed and the house sitter appeared to be a permanent resident. His mail was being delivered to the apartment, he had his own key, he had his own furniture, he had his own clothes, he had his own car, and his cat stayed with him. Of course, the rental unit was subject to Santa Monica Rent Control, which meant that the rent was below market value. The original tenant was actually living in Mexico but claiming an intention to return "soon." Of course, at $500 per month, who would not want to keep a two-bedroom rent controlled cottage in Santa Monica?

Attempts to meet with the original tenant failed and the house sitter kept saying that the original tenant would be returning shortly. After being put off for approximately nine months, the owners sought legal advice.

We served a Notice to Perform Covenant or Quit, to remove the "house sitter" because it constituted an unauthorized assignment/subletting, which was prohibited by the written rental agreement. After three days passed, the original tenant still did not appear and the house sitter did not disappear. We filed the summons and complaint. The tenant and the house sitter filed an answer through their attorney, and the matter proceeded to trial.

At trial, the original tenant did not appear. The "house sitter" testified and stated that he had no other place to live, and that he had been living in the property for a year and a half, but that he was merely "house sitting." One of the other tenants of the property testified that she confronted the house sitter with the fact that he was not supposed to be there and the house sitter said, "The landlord will never find out."

The problem that this case presented (as well as other cases) is that many times the tenant admits that a friend sleeps over, but is not a sub-tenant. The Court generally requires more proof than just the mere presence of the "friend." Of course, most times the "friend" says that he has another place to live and he or she is only spending part time at the rent-controlled apartment. We lost a case where the "friend" admitted to sleeping in the apartment six out of seven nights per week, but said he had his own place. The Court determined that this other case was not a violation of the rental agreement.

In this case, the house sitter did not have any other place to live and the situation had been going on for too many months. The Court reasoned that a guest generally stays only a few days, not nine months. In this case, the Court found that not only did the guest stay nine months but also had his cat in the apartment, had his own furniture in "his" bedroom, had mail delivered to the apartment, had no other permanent residence, and the owner acted promptly and did not accept rent after service of the notice. The Judgment was for the property owner; the tenant and his houseguest were evicted. Had the case been filed earlier, we do not know if the outcome would have been the same. Remember when you suspect something is wrong or in violation of the Rental Agreement, seek legal advice promptly.

Of course, after the November election in Santa Monica, the new proposed amendments to the Rent Control Law may allow the tenant greater ability to keep a roommate without the landlord's permission, and new regulations will be enacted to further define the new requirements, which will not be of benefit to the property owner. Know who is living in your property and never accept rent from any other than your tenant.