Can Someone Be A Subtenant If They Aren’t Paying Rent?
I like your column, you appear to be on the slightly radical side of liberal. 🙂
“Many tenants are confused about the definition of subletting. If you lease a premises, even on a month-to-month basis and you charge another person to rent the entire premises or a portion of the premises without somehow changing the lease by adding her as a tenant, you are subletting. You are the only person liable to the landlord to perform the various obligations of your lease.”
What if no money changes hands? What if the person living there is just feeding the cat and taking care of the place until the renter returns from vacation, skilled nursing facility, etc? Does this still legally constitute a “sublet”, or a renter?
I’ll be happy to elaborate on the context if you’d like, it’s basically about my Mother’s situation.
She’s been fighting for her life in a skilled nursing facility for a few months with a live-in watching her place (and cat) until she returns. Getting a lot of heat from her landlord – in spite of the fact her caretaker is registered as a tenant with same landlord. The caretaker is staying there for the consideration of providing care. No money involved in the exchange.
Going to make a few assumptions here, because your question does not provide quite enough details. I’m going to assume that your mother lives in San Francisco and has a rent-controlled tenancy. Based on your representation that the caretaker is a registered tenant, I’m going to assume that the landlord somehow accepted the caretaker as a roommate; or at least knows about your mother’s condition and that the caretaker is house-sitting.
As I stated in my August article, sharing the rent with a roommate also falls within the definition of subletting. The classic definition of subletting is the payment of consideration to a leaseholder for an exclusive right to all or part of the leaseholder’s interest in the lease. The subtenant has a contract with the leaseholder (master tenant) but not with the landlord. In a roommate scenario, the subtenant usually pays rent or other consideration to the master tenant to exclusively occupy a bedroom in the apartment. Most residential leases provide for a landlord’s written consent to sublet.
In your case, the landlord could argue that the caretaker is subletting because she is providing consideration, i.e., cat care and security for a free place to stay. But the analysis does not end there. A court would also inquire if the caretaker had exclusive possession. In other words, if your mother comes back does the caretaker still have a right to occupy all or part of the apartment?
Procedurally, the landlord is required to serve a three-day notice to cure or quit. If the caretaker moved out, that should nip the argument in the bud.
I think it is unlikely that a San Francisco jury would find that the caretaker was a subletter. Nevertheless your mother could be vulnerable to defending an unlawful detainer (eviction) action. Of course, if she can prove that the landlord has accepted the caretaker as a subtenant, case over.
Before serving a notice to cure or quit and filing an unlawful detainer, a prudent San Francisco landlord should file a “1.21 petition” at the San Francisco Rent Board. If the Board ruled that the apartment was not your mother’s primary place of residence, the landlord could raise the rent to market rate without evicting her.
That’s what it’s all about anyway, landlords rarely give a rat’s ass about who lives in an apartment as long as the rent is paid. They only care about subletters when and if they think the rent is too low.
Readers: when you submit a question, you should provide as many details as possible. They don’t have to be confidential details, but I need to understand the basics that I outlined in Tenant Troubles: How To Help Dave Help You. That way I can give you a complete answer based upon the the facts of your specific issue. If you eventually need to seek the advice of a tenant attorney, you will need to provide these initial details, so it’s a good idea to have them on hand.
BTW, the best way to piss me off is to call me a liberal. Mush-headed liberals think the system can be fixed. I have to be balanced, unbiased when I try to explain how the law works. 😉 That doesn’t mean that landlord tenant law is either fair, just or reparable. Ask your mother about that.
3 years ago my father came to live with me after suffering from diabetes and dementia so as my fathers power of attorney I sublet my fathers New York City Housing apartment to my friends son, and I left the rent at $345 a month for a 1 bedroom in flushing, queens, NY. He was suppose to be there for a couple of months but that turned into 3 years and his boyfriend and a dog moving in as well. Since it was two of them and I needed to cover my fathers medical expenses I raised the rent to $650, which is still way below market value. I am now planning to move my father back into his apartment and advised the tenant that they would have 3 months to move out but instead the tenant has stated they will not be paying rent for the next 3 months and will require me to pay him back the $3,500 (the difference between my fathers current rent of $350 and what the tenant has paid for the last 10 months…$650/month). I know charging an additional $300 a month may cause me some legal problems with the landlord but I need to get this tenant out as quickly as possible. The local police department said to call them when I go to the apartment and they will deal with the problem since he does not have a contract or lease and the legal owner of the apartment, N.Y.C.H.A. and my father, did not give him permission to live in the apartment the tenant has no legal right or grounds to stay in the apartment. I am writing to you to get your opinion because I know the results may change depending on the legal knowledge of the officer(s) responding.