Bad Credit

Tenants can sublet unless the rental agreement prohibits it

Q: My wife and I are supplementing our retirement income with a rental property we own in Suisun City. Recently we had to evict our long term tenant who had essentially lived there rent free during the pandemic. But when the sheriff’s deputy showed up to get the tenant out, their daughter with young children and her unemployed boyfriend stayed. The deputy couldn’t get them out because they weren’t on the eviction papers. We had to go back to court and get another judgment to evict them, but loopholes allowed them to challenge the eviction, despite not having a lease with us, and we have to set another court date. . In the meantime, they have occupied our property without rent the whole time. My question is simple: is there some kind of “list” or source of protection for landlords that can warn them in advance of this type of knowledgeable profiteer who uses the law to deprive landowners of revenue and legal fees?

A: As with many legal questions, the definitive answer is “no” and “sort of”.

Before I get to the specific answer to your question, let me provide a brief overview for other owners, or potential owners, regarding how issues similar to this occur, what they do while time.

As we go through this, remember we live in sunny California where you can ski in the morning and hit the beach for clam chowder for dinner. (OK, it’s a long drive, but you get the idea.)

California is where the consumer is king and the tremendous weight of the law is designed to protect consumers from those who prey on them, the byproduct of which is a situation like the one you just described.

In this case, you can’t really understand the problem without a little Landlord-Tenant 101.

Law school teaches the concept that real estate is not just one thing. Instead, it’s a set of things, or more accurately, “rights,” to a particular piece of land. You can donate some of the sticks in the bundle without losing ownership.

For example, I bet your house has easements for gas, electric, water, sewer, municipal landscaping, maybe even access to your neighbor’s house. You probably don’t own the mineral rights under your house. Likewise, you probably wouldn’t be allowed to have a commercial shooting range in your home. Each of these is a stick in the bundle that you no longer have. But still, you own your home.

Generally speaking, landlords and tenants have a simple agreement with each other. The owner undertakes to provide a roof over the head of the tenant if the latter agrees to pay rent. In legal terms, you are renting some of the sticks from your package.

So far so simple. Of course, the devil is in the details.

I’m sure the owners are aware that the ‘roof’ they provide has to come with certain things. Like lockable walls and doors for example. You also rent the “occupancy” stick to your tenant. In other words, your tenant can occupy the house much like a landlord would. Generally, the right of occupancy is the right to have guests of your choosing and the right to lease or sublet the property.

This is probably where you ran into problems.

Unless otherwise prohibited by contract, a tenant has the right to sublet. The sub-tenant then has all rights to the property of the “master” tenant.

All standard residential contracts that I know of contain a prohibition on subletting. I assume, for the sake of argument, that yours does too. And common sense would dictate that that would be enough. But this is not the case.

Unless the lease had been registered at the County Recorder’s office, and thus made public, the subtenant probably had no idea that the head tenant could not rent to him. Without specific knowledge, at least theoretically, the sub-tenant could take possession in good faith. In other words, you must evict them individually, by name, in a separate trial.

But regarding your question, there are really only three ways to check to see the type of tenant you are considering renting to.

You can check court records for any county they lived in to see if they were named in an eviction or other legal action.

Sure, you can do a credit check, but that probably won’t tell you much since most landlords don’t report to credit agencies. In addition, bad credit does not necessarily make a bad tenant.

And finally, you can actually call the last two owners. But again, you don’t really know who you’re talking to. The former “landlord” could be the potential tenant’s girlfriend for all you know.

All a homeowner can do is try these three avenues and get the most out of them.

Tim Jones is a real estate attorney in Fairfield. If you have real estate questions to which you would like to have answers in this section, you can contact him at [email protected].