Q:  My tenant is requesting to add a roommate to her lease – do I have to allow my tenant to have a roommate?

It depends on whether the lease or rental agreement allows for additional roommates. As a landlord, you may include a clause in your lease or rental agreement that authorizes or prohibits your tenant from having a roommate move into the property. If you allow your tenant to have a roommate, you should screen the potential roommate as you would any other applicant by providing the potential roommate with an application and perform a credit check as well. This will help you to determine whether the potential roommate qualifies as a tenant. If the prospective tenant passes your screening test, you can ask the original tenant to execute a new lease or rental agreement with the new roommate included or execute an addendum to the agreement.  

Either option will ensure that the new tenant has the same right and obligations as the original tenant. In addition, it may be wise to increase the monthly rental rate of the property if you enter into a new lease or rental agreement with the tenants. An additional occupant means higher utilities, extra wear and tear at the property, and an increased risk for damages and cleaning once they have vacated. However, it should be noted that in order to increase the rent with a lease, you will need both of the tenants to enter into a new agreement or addendum with a higher rental rate. You may ask for an increased security deposit amount as well to protect you from the increased chance of loss. It is important to remember that the maximum security deposit amount can only be equivalent to two month’s rent for an unfurnished unit. On the other hand, you may decide that after screening the potential roommate that they do not meet your requirements and thus you may reject them as a tenant. 

Q:  My tenant was recently married and her husband moved into the unit without my permission. What can I do?

Unfortunately, many landlords encounter unauthorized occupant(s) living at the property despite having incorporated a provision in the agreement that prohibits the tenant(s) from allowing unauthorized occupants to reside at the premises. It is at your discretion whether you agree to add the unauthorized occupant to the lease or rental agreement or wish to enforce the provisions of the agreement. If you are willing to add your tenant’s husband to the agreement, you can follow the advice given in the question above. Conversely, if you are unwilling to add her husband to the agreement and your agreement includes an unauthorized occupant(s) provision, you can serve her with a 3 Day Perform Covenant or Quit notice that informs her of the breach. If she does not cure the violation within the notice period, you may begin an eviction proceeding against the tenant. However, it should be noted that these types of notices are sometimes difficult to enforce because it is hard to prove. In the event that your rental agreement does not include an unauthorized occupant(s) or guest provision, it would be in your best interest to serve the tenant with a Notice of Change in Terms of Tenancy notice to modify the existing agreement to add such language.

Q:  I served my tenant with a 3 Day Notice to Pay Rent or Quit and am planning on filing an eviction. Now the tenant is claiming that there is another person living at the property that I did not authorize. What should I do?

As stated above, if your lease or rental agreement includes a provision that prohibits the tenant from allowing unauthorized occupants to reside at the premises without written/verbal consent from the Landlord, you may serve the tenant with a 3 Day Notice to Perform Covenant or Quit in addition to the 3 Day Notice to Pay Rent or Quit. It is important to remember that although this “occupant” may not be a party to the rental or lease agreement, they can still claim a legal right to reside at the property. Once the 3 Day Notice to Pay Rent or Quit has expired, the unauthorized occupant can be included as a defendant in the eviction action despite not knowing anything about them. After the proper unlawful detainer paperwork has been filed with the court, a Prejudgment Claim of Right to Possession should be served along with the eviction summons and complaint. Although, it is important to remember that the Prejudgment Claim of Right to Possession form must be served by a registered process server. The unknown occupant will then have 10 days from the date of service to file the Prejudgment Claim of Right to Possession form and pay the required filing fee (or apply for a fee waiver) with the appropriate court. If the unknown occupant neglects to file the form and filing fee, then they can be lawfully evicted from the property. If the unknown occupant does file the Prejudgment Claim of Right to Possession, they have 5 days from the date they file the form to file an answer to the eviction. If you do not have your tenant served with the Prejudgment Claim of Right to Possession, this occupant will not be locked out of the property when the sheriff performs the lockout. This is why it is crucial to have the Prejudgment Claim of Right to Possession served by a registered process server.

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 9:00 AM to 5:00 PM .-  Tel: 619-235-6180, website: www.landlordslegalcenter.com or email info@landlordslegalcenter.com