Fall Real Estate 2005

Publication Date: Wednesday, October 12, 2005

Must tenants pay after moving?
Job transfer led to breaking of lease

by Martin Eichner

Q: Several months ago we had to break our lease because my husband was transferred to a new job. We worked very closely with the landlords and were able to locate several prospective tenants. The landlords made their choice and a new lease was signed with the new tenants. We've received a letter from our former landlords stating that the new tenants changed their mind and are not moving into the house. The landlords say our lease is now re-activated and we must continue paying the rent. Do you think we still have to pay the rent?

A: It depends on how the new tenancy was created. If the property owners created a sub-tenancy for the new tenants under your existing lease, then you may still be liable for the rent. In this case, you would have had to sign an addendum to your lease to authorize the sub-tenancy or assignment of your lease. If this didn't happen, then your original lease was canceled and your obligation for rent ended when the landlord and the new tenants signed the new lease. The landlord would have to pursue the rent from the new tenants. For more information, contact your housing mediation program.

Q: The new owners of my apartment have sent out a notice limiting the hours the children's play area will be open. The notice says children are not allowed in the play area and must be quiet after 4 p.m. There are a lot of children in this complex and one of the attractions has always been the play area for after-school and early-evening recreation. Is it legal to close the play area at 4 p.m.?

A: No. It is quite legal to have reasonable noise rules, such as "No loud noises after 10 p.m." It is not OK to expect children to be completely quiet or not to play after school or during the day on weekends. People must allow for reasonable amounts of noise that children, as well as adults, make. Walls may be thin, windows may be open, and all of this can mean an apartment area can be loud at times. Some loud noise is normal and reasonable in an apartment complex. It comes with living in close quarters in apartment buildings, and that's a fact of life.

Restricting the time allowed for play in the children's area in this manner is unreasonable. Project Sentinel suggests that closing the play area at 4 p.m. would violate fair housing laws. It unreasonably restricts children's activities in a manner that has a very negative impact on families. Under the law, it is discriminatory to treat families with children less favorably than households without children. If you'd like more information about "familial status" discrimination, or other aspects of fair housing laws, please call your local fair housing agency.

Q: My roommate and I have separate rental agreements for the apartment we rent, but we share the utilities and rent equally. My roommate wants to move her boyfriend into the apartment. The landlord has agreed to add him to her rental agreement, but I don't want the boyfriend living here. Can the landlord allow anyone to move into my apartment without my consent?

A: The key phrase in your question is "separate rental agreements." If you both were named on the same rental agreement, each of you would have equal rights. For example, neither of you could compel the other to move or force any changes of the tenancy without the approval of the other. However, since each of you has a separate rental agreement, each of you is free to make changes to your personal tenancy, such as bringing in a new occupant. It is unusual for roommates to have separate agreements much like a boarding house. Contact your local housing mediation program for assistance in resolving this matter with your roommate.

Q: I'm selling a large apartment complex that I've owned for a long time. The new owners have told me that in three months they plan to move into the only four-bedroom unit in the complex. Am I legally obligated to tell the current tenants that they will be getting a notice to move?

A: There is no legal requirement for you to notify the tenants of any future plans the new owners may have. For all you know, the new owners' plans may change and they won't want this unit. Civil Code Section 1950.5(h)(1) requires you to notify your tenants of the date the property transferred to the new owners along with either their or their agent's name, address and telephone number. This is required because the buyers take possession of the property subject to the existing rental agreements and leases. The form Notice of sale of Real Property and of Transfer of Security Deposit Balance also includes an area to detail disposition or transfer of existing security deposits.

If the current occupants of the desired unit are on a lease, the new owners will have to wait until the lease expires to terminate this tenancy or honor the required advance notice time of non-renewal listed in the lease. The lease can be terminated early, only if the lease itself contains a specific provision that terminates it upon the sale of the property. For more information, contact your local housing mediation program.

Martin Eichner edits RentWatch for Project Sentinel, an organization founded in 1974 that provides landlord tenant dispute resolution and fair housing services in Northern California and administers rental-housing mediation programs in Palo Alto and Mountain View. Call (650) 856-4062 for dispute resolution or (650) 321-6291 for fair housing.