Real Estate

Rent Watch

Can someone collect rent on a prohibited sublease?

edited by Anky van Deursen

Q I have been renting a three-bedroom home for the last year. My lease has a clause that prohibits subletting, but I can no longer afford the lease because my hours have been sharply reduced at work.

Anky van Deursen
Rather than just move out, I rented one of the bedrooms to a "friend" from work. He lived in the room for a month but then moved out without paying the rent we had verbally agreed upon. I have told him I will sue him in small claims court, but he knows I was not allowed to sublet. He tells me that I cannot collect from him because the sublease to him was "illegal."

I really need this money. Am I entitled to collect?

A If you violated your lease by subletting, you may be in danger of eviction by your landlord. If the subtenant was still there, your landlord could serve a "three-day notice to perform covenant or quit" requiring you to remove the tenant or face eviction. Since the subtenant is now gone, your landlord may have less motivation to begin eviction proceedings that will be expensive for both parties.

However, the rental relationship between you and your subtenant is a separate legal relationship. Although prohibited by your prime lease, the sublet is not unenforceable or illegal in the sense that it violates civil or criminal law. It is more like a breach of contract between you and your landlord, which only your landlord can enforce.

Your former subtenant is not entitled to benefit from your breach by living rent-free for a month. Unless you collected some type of deposit, you will need to file a claim against your "friend" in small claims court to collect the rent for one month. Although it doesn't sound like you had any type of written rental agreement with your "friend" from work, a verbal rental agreement for less than year is generally enforceable, although you will need to establish the rental amount by your testimony. Even if the judge does not agree with your testimony supporting the amount agreed upon, you can expect the judge to award you the reasonable value of renting a bedroom for a month, because your "friend" benefited by living in your home for a month.

Q I have lived in my apartment for six years. Just recently, a friend told me that I should have been receiving interest on the $2,000 security deposit I paid when I first moved in. Over all these years, the interest should have added up to a lot of money. Am I too late to sue for the unpaid interest?

A If you have a written rental agreement, the good news is that you have four years to file a case in small claims or any other court for money owed as a result of your security deposit, for example failure to refund it. If you have a verbal agreement, even if there aren't many details other than the amount of rent and the amount of the security deposit, you have two years to file a case.

However, the bad news is that there is no state law in California requiring a landlord to pay interest on a security deposit. You can still check whether your local jurisdiction has an ordinance requiring interest to be paid on security deposits. Some local rent-control ordinances do require landlords to pay interest. For example, the rent-control ordinance that applies in the city of San Francisco requires that interest be paid yearly. However, if you are not under such a local ordinance, your landlord does not owe interest to you.

Project Sentinel provides landlord-tenant dispute resolution and fair-housing services in Northern California, including 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, email or visit

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