Renters' Forum

You Want Them Out, but Are They Unauthorized Tenants or Just Guests?

By Robert Griswold, Steven R. Kellman and James McKinley
Saturday, December 29, 2007

Q: We believe there are illegal occupants living in an apartment we own and manage. These occupants are not on the lease, and we believe they are family or friends of the tenant. When we have asked about them, we have been told that they are visitors.

However, other tenants in the building report seeing them at all hours. Our utility costs are out of control, particularly the water, which we pay. They are also quite disruptive to their neighbors. What can we do as landlords to prove and stop illegal occupations?

A: Landlord attorney

James McKinley replies:

Most rental agreements provide that the premises are to be occupied by the tenants on the lease -- and no one else -- and that there is no right to sublet the premises. If other people move in, a landlord has the right to serve a three-day notice to the lawful tenants 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 state how the agreement is being breached. If the tenants do not comply with the notice by removing the occupants not listed in the lease or by completely vacating the unit, the landlord could terminate the tenancy by filing an unlawful-detainer action.

However, proving the existence of unapproved occupants 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 neighbors to testify as to when the so-called guests come and go. A judge would decide whether they were occupants or guests. 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 lease, you could serve an appropriate written notice of termination of tenancy.

I live in an apartment building with wood fencing around the back yards of each of the rental units. The fencing is falling apart, with many of the boards missing or broken. Rather than fix all of the damaged fences with new boards, the owner will replace one and then recycle the old boards 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. 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. Not doing so puts him at increased risk for injury claims and may cause problems with his insurance carrier if it inspects the property. While he can make accusations and blame the children, it would be difficult for the landlord to prove that they are in fact breaking the fence.

I wouldn't advise you to withhold rent. Communicate with your neighbors, as I am sure you are not the only one concerned. Perhaps 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 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 Questions should be brief and cannot be answered individually.

Copyright 2007 Inman News Features

Distributed by Inman News Features

© 2007 The Washington Post Company