Question: We believe that there are illegal occupants living in an apartment that we own and manage. These occupants are not on the lease and we believe they are members of the tenant’s family or friends. When we have asked about these people, we have been told that these people are visitors only. However, other tenants in the building also report seeing them at all hours and they are also quite disruptive to their neighbors. Our utility costs are out of control, particularly the water, which we unfortunately pay. What can we do as landlords to prove and stop illegal occupations?
Landlord attorney James McKinley replies:
Most rental agreements provide that the premises are to be occupied by the tenants named on the lease, and no one else, and that there is no right to sublet the premises. In a case where tenants named on the lease move in their extended family, a landlord has the right to serve a three-day notice to perform covenant or quit. This notice would specify the paragraph number of the lease that limits the occupancy of the unit to the tenants, and must also state how the agreement is being breached. If the tenants do not comply with the notice by either removing the occupants not listed in the agreement or completely vacating the unit, the landlord could terminate the tenancy by filing an unlawful detainer action.
However, as you alluded to in your question, proving the existence of “illegal occupants” that aren’t listed on the lease can be difficult. If the tenants file an answer to the unlawful detainer case, the landlord would have the burden of proving that there were people living in the premises that were not on the lease. The landlord might even have to subpoena the neighboring tenants to testify that they see when the so-called guests come and go. It would be a question for the judge to decide, and the more evidence the landlord can produce the better, as it is basically your word against the tenants. If your tenants are on a month-to-month tenancy, you always have the option of serving an appropriate written notice of termination of tenancy.
Question: I live in an apartment building with wood fencing around the individual backyards for each of the rental units. The fencing is very old and is falling apart with many of the boards missing or broken. Rather than fix all of the damaged fences with new boards, the owner is cheap and will simply replace one and then recycle the old boards for use to patch the other fences, including mine. I think this is dangerous and could lead to my children or their friends getting injured. I have written letters to the owner, but he ignores them for the most part. When I recently saw him he indicated that it was not his fault, as the residents and their children were breaking the fence by climbing on it. Shouldn’t the landlord have to fix the fence or do I have to pay to fix this fence myself? Maybe I should withhold rent to cover the cost of the new fence.
Property manager Griswold replies:
I would advise your landlord to take responsibility and properly replace the fence. Of course, your landlord cannot force you to repair or replace the wooden fence, as it is part of the premises that he is responsible for maintaining. I wouldn’t advise you to withhold your rent based on his failure to properly take care of the fence. The fact that it is dangerous puts him at increased risk for injury claims and may cause him some problems with his insurance carrier if they inspect the property. While he can make accusations and blame your children, it would be difficult for the landlord to prove without solid evidence that the children are in fact breaking the fence. Keep paying your rent and communicate with your neighbors, as I am sure you are not the only one with this concern and maybe you can coordinate with the other residents and the landlord to work out this problem. Perhaps the costs for repair and replacement could be shared between the landlord and some of the residents through a community garage sale or other similar event. Clearly, a new fence is in everyone’s best interest.
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 James McKinley, principal in a law firm representing landlords.
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