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Question: For the last three years we have rented from a landlord couple and currently we are just month-to-month. Recently we have been informed that the husband-and-wife landlords are getting divorced. Both have called me individually and asked me to send the rent check to them directly. The wife hinted that if I didn’t send it to her, she would give me notice. Each one has called a couple of times and it definitely feels like harassment. The husband sent me a letter stating his new address and a rent increase. They have put me in the middle of a messy situation. Whom do I send the rent check to?

Tenants’ attorney Kellman replies:

If the property is owned by your landlords jointly as husband and wife, they are in a partnership where each may enforce the lease on behalf of the other. This means that if one landlord raises the rent, that raise will be valid even if the other landlord partner knew nothing about it. This goes for a termination of tenancy notice as well. Landlord partners are jointly liable for the acts or contract liabilities of each other, much like roommates are responsible for each other. You should not be caught in the middle of any partnership (or marital) dispute. As to the impending divorce, avoid taking sides between them. After, you may back the wrong spouse and befriend the one who loses control of the property. The other landlord spouse may wish to thank you for your misplaced loyalty with an eviction notice. For now, you may want to make your rent checks payable to the landlord husband and wife jointly. This should go a long way in preventing problems until the dispute over who will get control over the property is finally sorted out.

Landlords’ attorney Smith replies:

Although co-owners of rental property are usually “together” when it comes to rent collection matters, such is not the case here. I agree with Steve that your lease does not require you to pay rent twice, nor will you have to split the rent between the two spouses. On the other hand, as the landlord’s attorney, I urge you not to take advantage of this situation. Do your part. Start by writing both of them, expressing an understanding and concern for the situation and your desire to comply with the lease agreement. Ask them to clarify in writing whom to pay. The husband or the wife should get an order from the family law court establishing the right to the rental income pending a resolution of the community property issues. If one or the other obtains an order, ask for a copy. Take your direction from the court order. One way or the other, you will have to comply with your lease agreement in all respects if you desire to remain in possession. Further, their pending divorce will not excuse your performance under the lease. Finally, if you do pay one and the other tries to claim rent again from you, you’ll have a complete defense in the eviction court.

Question: Last year I rented an “apartment” in a converted garage of a house. I didn’t realize there was anything wrong until my dad, an architect, came over and told me it is not a legal rental. He told me the window vents are too small, as they have to be at least 3 feet for fire escape. So, I checked with the local building officials and they gave me copies of two letters that they had sent to the owners stating that the place is zoned for one family only. There are already two adults living in the house. The city gave me its substandard housing complaint form to fill out so that it can take administrative action. I have paid the landlords $2,500 so far. Is it possible for me to rescind the month-to-month agreement and receive a full or partial refund? I am a starving student and really need the money.

Tenants’ attorney Kellman replies:

Generally, a dwelling rental unit must be legally zoned and permitted as a residence before a landlord can rent it out. If a landlord does rent a dwelling unit that is not properly zoned or permitted, it may be said that the rental agreement is for an illegal or improper purpose. The law does not condone or enforce contracts for illegal purposes, including renting a dwelling that significantly does not conform to law. It is unlikely that the city will rezone the house and all the corrections will be promptly made to rectify the situation. Therefore, you may take this opportunity to seek to rescind (cancel) the agreement based on the illegal purpose of the contract or based on the implied misrepresentation that it was legal. You will need to promptly vacate the unit and return the keys. You can then make a claim for the return of all the rent and other money paid, even the past rent. While refunding past rent may seem unfair to the landlord, public policy supports this view because it seeks to promote safe and lawful dwellings and to discourage renting out unlawful ones. If the landlord refuses the refund, you can use the small claims court to recover that rent and any other damages you may be entitled to such as moving costs.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

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