Have Tenants Added a Roommate? Make It Official.

Q: I have owned a two-unit apartment building for the past four years. I have month-to-month tenants in one of the units who started renting there after I bought the building. They have a clearly written agreement that states that they are the only tenants and that no subletting or other tenants are permitted. However, we are about 90 percent sure that someone else has moved in for the past nine months. He never comes or goes, and yet he's there day and night, seven days a week. How do we prove it, and what recourse do we have?

A: James McKinley, a lawyer who represents landlords, replies:

You don't say whether your original tenants are still living in the unit. If they are, you should start by asking them whether they have added a roommate. If someone else has moved in, you could have him fill out a rental application and, if he meets the rental criteria, sign a new rental agreement with all the tenants. Or you could serve a legal notice to perform covenant or quit, followed by an eviction action if your tenants do not comply by removing the occupant not on the lease.

If you think you cannot prove there is an illegal subtenant, you always have the option of serving a notice of termination of tenancy.

Many times I have arrived home to a smoked-filled apartment caused by my neighbor who barbecues on his fire escape. I called the fire department; they advised me to shut my windows. This is a health hazard for me. Also, the fire escape is full of debris. Shouldn't fire escapes be free of any items?

McKinley replies:

Fire escapes are most common on multiple-story residential buildings, such as apartment buildings. At one time, they were an important aspect of fire safety in urban areas; more recently, however, they have fallen out of common use.

Fire escapes are designed for emergency use only. They should not be used for recreation or cooking and should not be cluttered with debris. You should speak to your landlord to make him aware of the problem. I doubt your landlord wants any tenants barbecuing or otherwise using the fire escape for anything but its intended purpose.

The landlord should fit the door or window that accesses the fire escape with an alarm to prevent unauthorized use of the fire escape. As many fire escapes were built before electronic fire alarms, fire escapes in older buildings have often needed to be retrofitted with alarms for this purpose. If your landlord does not respond to your request, you should complain to your city's code-enforcement department.

Steven R. Kellman, a lawyer who represents tenants, replies:

Smoke, whether from outdoor cooking or cigarettes, is a chemical released into the air. It is something that can intrude on or disturb a neighbor, and therefore may be improper and may be restricted if excessive.

Having to close one's window to block out a neighbor's barbecue smoke is hardly fair because it deprives you of the right to full use of the unit, including the fresh air around it.

Fire escapes are designed for emergency use, not to have barbecue fires set on them. Using a fire escape for recreation, as if were a balcony, is not only improper but also may be dangerous because the escape was not designed for that. It may not hold the sustained weight of a barbecue event, or it may present other hazards.

Accumulation of debris on the fire escape will also impair the intended use and perhaps cause more injuries.

James is right when he advises that you should seek assistance and intervention from the landlord, and that if no help is forthcoming, contact the city.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenants Legal Center, and James McKinley, member of the Moffitt & Associates law firm, which represents landlords. E-mail your questions to Griswold at rgriswold.inman@retoday radio.com. Questions should be brief and cannot be answered individually.

Copyright 2007 Inman News Features

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