http://paloaltoonline.com/print/story/print/2008/09/26/rentwatch


Palo Alto Weekly

Real Estate - September 26, 2008

RentWatch

Who can legally evict a sub-tenant?

by Martin Eichner

Q For the past three years, I have rented a house to "Bob" who has always been a good tenant for me. However, six months ago, I found out that Bob had sublet a room in the house to a friend, "Joe." Now Bob is complaining to me that Joe has stopped paying rent and has begun to behave badly. Bob wants Joe out of the house and has asked me to take action against Joe. Do I have any obligation to deal with Joe since I never rented to him?

A In terms of landlord-tenant law, Joe has become a sub-tenant of Bob. This case illustrates the problems that can result from sub-tenancies. Joe was allowed to move in without being screened by you to determine if he would be an acceptable tenant. The only direct "landlord-tenant" relationship exists between the original or prime tenant Bob, and the sub-tenant, Joe.

This means that only Bob has the clear legal right to evict Joe. Bob can start with a written 30-day notice of termination to Joe or a 3-Day Notice to Pay Rent or Quit. However, if Joe doesn't voluntarily leave or pay rent after receiving these notices, it is unlikely that Bob will undertake the cost of retaining an attorney to obtain a court-ordered eviction, known as an unlawful detainer.

Your legal standing as the true landlord, to proceed against Joe, is unclear since there was never a rental agreement between you and Joe. If Bob, the prime tenant, can't secure the removal of the sub-tenant, you will be forced to terminate the tenancy of everyone in the unit in order to include Joe. However, this means you may lose Bob as well as Joe.

The problems described here are the reason we advise landlords to guard against allowing sub-tenancies. To be safe, a landlord should use a rental agreement that requires any non-family member adult living in a rental unit to obtain the written permission of the landlord. All such adults should be required to become signatories to the rental agreement, so there is a direct landlord-tenant relationship between that adult and the landlord. This approach allows the landlord to screen an unrelated adult to make sure he or she is a suitable tenant.

This approach also gives the landlord the clear right to directly evict that specific tenant, if necessary.

Q With identify theft being such a hot topic, how can tenants protect themselves from landlords who may allow applications and credit reports to fall into the wrong hands? Is there a law that would apply to this situation?

A The Federal Trade Commission has issued rules that apply to this subject. The rule is known as the Fair and Accurate Credit Transaction Act (or FACT Act) and applies to all businesses including one-person landlords. The FACT Act requires landlords to dispose of credit reports and any information taken from them once they are no longer needed.

Small property landlords should destroy old records using a common shredder. Multi-property landlords or management companies that have large amounts of documentation may want to use a shredding service. Landlords should take great care to minimize the chance that someone will use the information for illegal purposes. Access to this information should be controlled on a "need-to-know" basis.

Discuss this matter with your landlord or management company to determine how they handle personal and confidential information.

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, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or e-mail mediate4us@projsen.org.

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