Question: Please let me know what tenant-landlord regulations apply to renting an illegal rental unit that is part of the two-family home we lease. We live in a rental unit on the lower floor, while a single mother and her child live in the upper flat. The 37-year-old unemployed son of our landlords lived in this bootleg rental unit off the garage rent-free, even using the utilities connected to our flat. Last month, he accidentally set the place on fire and the police discovered drug paraphernalia in the son’s room while the firemen were here. A neighbor that is a law school student told us that we had the right to file a civil suit citing endangerment if the son was not gone within 30 days. The father apologized and arranged for him to be gone in 24 hours. Now they’re cleaning, painting and repairing the small room. We — and our upstairs neighbor — were hoping to finally use the backyard undisturbed. There is no street number, no mailbox or any indication that a third apartment exists. Any mail the son got came to our address, and I heard him give our house number to the fireman who asked for his address the day of the fire. Can the landlords rent out this illegal unit again?

Property manager Griswold replies:

I would immediately contact the code enforcement office and anonymously report what you believe to be an illegal unit. Hopefully, they will investigate and take action to prevent your landlord from attempting to rent the unit to another dangerous individual like their son. Of course, you really need to consider whether you want to be the tenant of a landlord that would allow your lives to be placed in jeopardy by allowing a dangerous individual to live illegally next to you in the first place. While some will empathize with the landlord’s challenge as a parent trying to help his child, I believe it is completely unacceptable and a clear indication of poor judgment by the landlord. I would seriously advise that you find another place to live. If that will take some time and you still want to prevent the landlord from illegally renting the room below you, you may want to contact the fire department and give them additional information for their report. For example, you may want to clearly explain that the fire began in an area that was not part of your rental unit but an area that apparently is being occupied by a relative of the landlord. Typically, the fire department will conduct its own investigation and/or turn the matter over to the code enforcement to investigate the legality of the specific rental unit where the fire originated. Either way, you need to make sure this scenario cannot occur again.

Question: I was living in an apartment complex that charged first and last month’s rent and a security deposit to move in. I gave 60 days’ notice to move out and when I received my security deposit they had taken money out of it to put towards “last month’s rent” since the rent had gone up during my tenancy. Didn’t I pay last month’s rent already?

Tenants’ attorney Kellman replies:

Many leases that allow for a prepayment of the last month’s rent will simply confirm the payment of the security deposit and the additional payment of the last month’s rent. Some leases, however, will say that the payment is only “towards last month’s rent.” This is obviously a big difference sinceif the last month is prepaid, it is paid no matter whether the rent was raised during the tenancy or not. If the payment was towards last month’s rent, then the landlord will be on firmer ground to claim the difference from the deposit. Depending on the lease, it is probably all right to object to the deposit deduction with a letter or even a small claims court action if the deduction amount is significant. Most courts will lean toward the tenant since they prepaid this money believing the last month was all paid and the landlord had the benefit of that money all this time. Also, ambiguities in an agreement will most likely be read against the person causing it (i.e. the landlord who wrote or provided the lease form). Some landlords are pretty wise to this situation and will actually raise the last month’s rent prepayment when they raise the rent.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing 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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