Q:  I have two tenants and they are in the middle of a one year lease.  One tenant has a family emergency and has to move out temporarily.  The other tenant would like to stay and find a new roommate to take the moving tenant’s spot in the interim.  Should I enter into a new lease with both tenants or allow the moving tenant to sublease her interest to the new tenant that comes in under my current lease?

It is always best to have your tenants living in the rental property named in the lease and sign the lease.  However, if your lease states that a tenant may sublet or assign her interest in the lease if she obtains your approval, then your refusal to consent to the sublet must be reasonable. For example, a reasonable objection to the sublet could be that the potential subtenant refuses to fill out a rental application and permit you to check her credit to be sure she can afford the rent.

If you allow the moving tenant to sublet, rather than have the subtenant sign a new lease, most provisions of your lease should still apply to the new subtenant.  A sublet is common in a situation like this where a renter has to move for a specified period but wishes to return to the rental unit.

When a tenant decides to sublet, she is basically agreeing to let someone else rent the unit for a specified period, after which time she may return to rent the unit for the remaining term of the lease.  The subtenant is bound by the terms of your lease with the moving tenant.  Further, the moving tenant still remains responsible for the rent.  If the subtenant does not pay rent you can still start an eviction against all tenants, including the moving tenant, to recover the unpaid rent.

Q:  What can I do if the moving tenant sublets the rental unit without my consent and the subtenant moves in? 

If your lease prevents assignment or sublet without your prior approval then you can serve all tenants, including the one that moved out, with a three (3) day notice to perform a covenant of the rental agreement or quit.  If the moving tenant and the subtenant then fail to comply you can start an unlawful detainer against them.

However, if you (1) fail to object at the time the sublet occurs, (2) demand rent from the subtenant, (3) accept rent from the subtenant, or (4) permit the subtenant to move into the rental unit without objection, you may have waived your right to claim that the tenants are in breach of your agreement.

Q: My rental agreement does not have a clause prohibiting assignment or subletting, can I add one after the agreement is signed?

Yes, you can amend your month to month rental agreement by serving a notice of change in terms of tenancy.  With the notice you can state that you are changing the terms to add a new clause prohibiting assignment or sublet without your prior approval.  The change cannot go into effect until 30 days after you serve the notice on the tenant.  If you mail the notice you should add five (5) more days to give the tenant time to receive the notice in the mail before the 30 day period starts.

If you have a fixed term lease you cannot add a clause prohibiting assignment or subletting.  You will have to wait until the end of the lease term to add the clause to a new lease agreement or rental agreement with the tenant, unless the tenant is willing to sign an addendum agreeing to the new clause.

Q:  All my tenants are on one rental agreement but they each pay rent to me individually.  If one of them is not paying his share can I evict all of them?

Possibly. If you have one rental agreement for all tenants in the rental unit then all tenants are liable for the entire rent, regardless of any arrangement among the roommates, or if you collect rent from each tenant individually.  To start the eviction you would serve all of the tenants with a three day notice to pay rent or quit.  The other tenants that are paying their share of the rent have the right to step up and pay the other tenant’s deficient portion.  If no one pays the unpaid portion after the three day period ends then you have the option of filing an eviction case based on the three day notice.

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.

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