Q: I have a friend who is a French citizen, who came to the United States on a visitor’s visa, fell in love and married a U.S. citizen. Unfortunately, they began a trial separation after a few months. My friend got her own apartment (but hasn’t done anything legal about the separation). Now she wants to get a green card, and will need to prove to the immigration authorities that she’s married. They’re asking her to show them a lease showing that she and her husband live together, but her landlord won’t add her husband’s name to the lease. What can she do? –Andre Z.

A: Your friend has two problems — a landlord problem and an immigration problem — and the latter is going to prove by far the thorniest. Let’s tackle that one first.

The immigration authorities (U.S. Citizenship and Immigration Services, or USCIS) are not going to issue a green card to your friend until they’re satisfied that her marriage was genuine, and not a sham (an attempt to gain residency through marriage). To prove that true love, and not convenience, motivated the marriage, all couples in this situation have to produce evidence — photos, letters, documents, testimonials — that show that the marriage was for love. Now, it’s certainly possible that a marriage can be premised on love but then deteriorate, and the reasons may have nothing to do with one member’s immigration status — but when this happens, in practical terms the couple will have a harder time proving the genuineness of the marriage. All of the rosy photos, correspondence and attestations of friends will invariably begin to pale against the reality that the union doesn’t appear to have lasted — and the USCIS may draw the conclusion that the marriage was a sham all along.

Your friend faces an uphill battle on this front, and would probably do well to seek the advice of an immigration attorney, who can advise her on how to proceed. The lawyer might, for example, ask whether they’ve visited a marriage counselor — in which case a letter from the counselor stating that the couple has been trying to make it through this rocky patch will be good evidence of a real marriage. However, if their chances of reconciliation don’t look good, USCIS probably won’t grant the green card.

Now, let’s look at your friend’s landlord problem. You haven’t told us whether your friend and her husband actually intend to live together now, or whether adding his name is simply for show. Let’s assume that love has rekindled. As long as the rental is physically large enough to accommodate two persons, a landlord will have a very hard time legally rejecting the addition of a spouse. You may hear the landlord object on financial grounds (perhaps the husband’s credit record is not so good), but as long as your friend has passed the landlord’s rental criteria (which she obviously has), this objection is not going to support a refusal. That’s because spouses that live together are legally responsible for providing the "necessities of life" for each other, which means that either spouse’s credit history should be legally sufficient to meet the landlord’s requirements. (Unrelated roommates, on the other hand, can be expected to each measure up to the landlord’s credit requirements.) Landlords may reject a couple if one member has a poor record as a tenant, or other reasonably disqualifying skeletons in his or her closet, but you’ve given us no indication of that.

If your friend and her husband are not intending to really live together, you’re asking the landlord to participate in a ruse, to be perpetrated on the USCIS. A landlord who understands what’s going on will understandably, and rightly, refuse to go along. Being temporarily separated from her husband might not ultimately destroy your friend’s hope of a green card, but engaging the landlord in a fraud is not the way to go. All the more reason to work with a lawyer, who can help convince USCIS that it doesn’t really need to see a joint lease in order to recognize a real marriage.

Q: Our tenants recently told us about a plumbing leak that has apparently been there for some time. The wallboard and cupboards were damp and there was black mold everywhere. We called the plumber right away and also replaced part of the wall, and thought no more about it until we were served with a lawsuit brought by our tenants. The husband is claiming that the mold has caused serious and permanent health damage. We know he suffers from asthma, but how can he prove that it was the mold in the apartment that made him sicker? Wasn’t he partly at fault for not telling us about it sooner? –Tom and Carol B.

A: Your tenant may have a difficult time pinning any worsening of his health problems on the mold. To be successful, there are two kinds of evidence he could present: First, he could take surface or air samplings of the mold and look for any mycotoxins that the mold produces (mycotoxins are produced by some molds and make some people sick). But just because you’ve identified a mold capable of producing mycotoxins doesn’t mean that this particular batch did so. In any event, because you’ve removed and destroyed the wallboard, this method of proof isn’t really an option for your tenant.

Second, he could have his blood tested to see if it contains antibodies that, arguably, he would have developed after being exposed to mycotoxins. But many courts will not admit this type of evidence because the scientific community itself is not uniformly convinced of its reliability.

Your tenant may yet be able to prove his case, using new techniques involving DNA. The new DNA testing identifies mycotoxins’ DNA in a person’s blood or tissue, and can identify up to 40 kinds of molds. This test seems to consistently satisfy judges’ admissibility standards because it is reliable and specific. But it will still be up to your tenants to convince a judge or jury that the mycotoxins came from the mold in their apartment, and not from somewhere else.

Your tenants’ failure to alert you of the plumbing problem may pose further difficulties to their case. In this area, at least, we’re not dealing with emerging science — or law, for that matter. Hopefully, your lease or rental agreement includes a clause requiring your tenants to tell you of any serious or potentially serious maintenance problems (don’t be too worried if it’s not there — juries will expect tenants to exercise common sense). Your tenants should have spoken up when the black spots began to appear, if not before. Their failure to do so resulted in the continued growth of the mold (which heightened the risk of the health problems they claim it caused). This might be a garden-variety instance of someone contributing to a problem created by someone else, known in legalese as contributory negligence or comparative negligence. In every state, once the jury decides there’s fault to be shared, the amount a plaintiff may collect will be diminished or even destroyed.

If you haven’t done so already, get in touch with your insurance carrier right away. As long as your liability policy has not excluded mold as a covered peril, you should be able to hand over the case and let the lawyers and scientists working for the carrier do all of the work. And, in the future, be sure to include a clause in your rental documents requiring tenants to tell you about maintenance concerns, and inspect your rentals on a yearly basis to see any developing problems for yourself.

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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