Divorcing Landlords Use Tenant as Pawn in Battle

Robert S. Griswold | Steven R. Kellman | Ted Smith
24-November-2002 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (9 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: We are renting month-to-month. The husband-and-wife landlords are divorcing and each has asked me to send the rent check directly to them. The wife hinted that if I didn't send it to her, she would give me notice. The husband sent me a letter stating his new address (and a rent increase). To whom do I send the rent check?

ANSWER: Tenants' attorney Kellman: If the property is owned by your landlords jointly as husband and wife, they are in a partnership where each may enforce the lease on behalf of the other. This means that if one landlord raises the rent, that raise will be valid even if the other landlord partner knew nothing about it. This goes for a termination of tenancy notice as well.

Landlord partners are jointly liable for the acts or contract liabilities of each other, much like roommates are responsible for each other. You should not be caught in the middle of any partnership (or marital) dispute.

Avoid taking sides; you may befriend the one who loses control of the property. The other landlord spouse may wish to thank you for your misplaced loyalty with an eviction notice.

For now, you may want to make your rent checks payable to the husband and wife jointly. This should prevent problems until the dispute over who gets control is sorted out.

Landlords' attorney Smith: Although co-owners of rental property usually act together when it comes to rent collection matters, such is not the case here. I agree with Steve that your lease does not require you to pay rent twice, nor will you have to split the rent between the two spouses. On the other hand, as the landlord's attorney, I urge you not to take advantage of this situation. Do your part.

Start by writing to both of them, expressing an understanding and concern for the situation and your desire to comply with the lease agreement. Ask them to clarify in writing who to pay. The husband or the wife should get an order from the family law court establishing the right to the rental income pending a resolution of the community property issues. If one or the other obtains an order, ask for a copy.

Take your direction from the court order. One way or the other, you will have to comply with your lease agreement in all respects if you desire to remain in possession. Their pending divorce will not excuse your performance under the lease. If you do pay one and the other tries to claim rent again from you, you'll have a defense in the eviction court.

Room gloom

Question: I am renting a room in a house. I used to pay $400 per month. But in the middle of September, my owner increased the rent to $450. In October, I only paid $400 since she never told me when the rent increase was effective.

She called and said I have to pay the additional $50. According to the California civil code section 827, if the increase is more than 10 percent, she needs to give me 60 days written notice. Does this law apply to my situation?

Tenants' attorney Kellman: This large rent raise law [Civil Code 827(b)] covers " . . . all leases of a residential dwelling, or of any interest therein, from week to week, month to month, or other period less than a month . . . " If you are renting a room, you are a tenant with a lease of a residential dwelling. You are then covered under this law and are entitled to the additional notice period. Interestingly, the law does not specify a 60-day notice. It states that you are entitled to an additional 30-days notice for raises of over 10 percent calculated over the past 12 months. (There is an exception to this rule with some subsidized housing situations).

Actually, the total notice needed may be more or less than 60 days, depending on the underlying lease agreement that may provide for a shorter period of time in which to change the terms of tenancy. Also, if the notice is served by mail, you get an extra five days for mailing added to the required notice period.

Pet cause

Question: I am renting an apartment and the landlord allows only one dog or cat with an additional security deposit of $500 for each animal. When I asked about getting a bird he said he doesn't allow birds because the seed would attract mice. Where do I stand?

Property Manager Griswold: The owner of a rental property is not legally required to take pets with one exception: If the pet or animal is medically prescribed as a companion or service animals under the Americans with Disabilities Act. Unless you qualify under ADA law, your landlord can set uniform standards for allowing certain types of pets. They can also make policies about the breed, size restrictions, etc. as long as they have the same policies for all tenants that are not qualified under the ADA protections.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2002 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com