Landlord may object to tenant subletting to tourists

Rent it Right

Q: I rent an apartment in a great location in a tourist-heavy city. Frequently, big events come to town, like sports events, conventions and festivals, which attract many visitors, some of whom would prefer to live in an apartment rather than a hotel. I’m planning on moving in with a friend for a few weeks next summer and renting my place to these tourists. I can earn a lot of money from this. Besides a risk to my belongings, is there any downside to this plan? –Randy S.

A: Before placing your ads, you might take a look at your lease. If it’s even half-way comprehensive, it will have a "no subletting without consent" clause. That clause is intended to prevent tenants from turning their rental over to someone else for a period of time (or renting out part of it while they still live there) without the landlord’s consent. Violating the clause is typically grounds for termination and (if necessary) eviction.

Landlords regularly use these clauses for two reasons: First, they don’t want people living on their properties whom they haven’t screened. For example, they want to make sure residents come with solid references and a history of good tenant behavior. If someone begins living on the property whom they haven’t screened, they will worry about damage, noise and more.

Second, landlords believe that they alone have the right to make money from their property, not tenants. The thought that a tenant will turn around and make money off their properties makes them livid. When tenants propose a sublet that nets the tenant some money, many landlords will refuse it outright (or, borrowing a page from the commercial landlord’s playbook, insist that any profit be split evenly with the landlord).

If your lease has such a clause, and you have a hands-on landlord who is likely to notice that you’re not in residence, you risk a termination notice for violating the clause. Even if your landlord is far away or obtuse, don’t put it past other tenants to complain if your subtenants, unmindful of the neighbors’ expectation of peace and quiet, create disturbances as they come and go at late hours (after all, they’re on vacation).

The wholesale subletting of rent-controlled apartments in San Francisco has recently become a hot issue. News reports speak of tenants who enjoy low rents, thanks to continuous residence in a rent-controlled building, who rent their units almost continuously to tourists or long-term business visitors. In a rare showing of agreement, tenant advocates and landlords are on the same side of this issue. Tenants don’t like that these units are being used by visitors and are not available to genuine tenants; and landlords hate not only the profits that their tenants are making, but that such behavior deters these tenants from moving out (only at move-out can the landlord raise the rent to market rates).

In addition, zoning laws may be violated when these rentals operate in an area not zoned for commercial use.

Landlords who are concerned that their units are being run as businesses by their tenants need to make sure that their leases include a subletting clause that forbids such practices. After that, it’s up to the landlord to be vigilant (but not nosey) as to who is living on the property.

Q: One of our tenants was injured when an ungrounded outlet in the kitchen shorted out as she was using an appliance. Our building should have had grounded plugs, but we didn’t know they were ungrounded. Are we responsible for her injuries? –Barb and Bill M.

A: When tenants are injured on rental property, usually the question for the landlord is this: In this situation, was the landlord negligent? And if so, did this negligence cause the accident; and was the tenant hurt as a result?

For example, a tenant who slips on wet stairs must prove that the landlord was careless — for example, by failing to fix a leaky hose that kept the stairs wet. Once carelessness is proved, it’s only a matter of whether that carelessness caused the injury, and whether the tenant was, in fact, injured.

Sometimes lawmakers identify certain acts (or inactions) that are so important that the question of negligence is bypassed.

For instance, landlords everywhere must adequately fence swimming pools to keep children from wandering in unattended. If the fence is missing or inadequate, and a child is injured in the pool, the jury won’t be asked to decide whether the landlord was negligent in failing to provide or maintain the fence. Instead, the absence of an adequate fence will be deemed negligent, period. The only questions for the jury are whether the lack of a fence caused the injury, and whether the child was in fact hurt.

These laws are called "negligence per se" laws, which means that failure to follow the law is conclusive proof of negligence. Your state legislature may have written its "grounded plug" law in this manner, saying right in the statute that a landlord’s failure to provide required grounded plugs is negligence as a matter of law. If that’s the case, and your tenant was injured because of the failure to ground the appliance, you may well be liable. A possible defense might be the tenant’s own carelessness — if she knew the plug was ungrounded and unsafe, but used it anyway, that might defeat (or reduce) her ability to look to you for her damages.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at janet@inman.com.

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