Subletting Turns Tenant Into a Landlord

Question: I rent a large home and I am the only tenant on the one-year lease. I am thinking of adding a couple of roommates to reduce the cost of my rent. Can I collect a share of the security deposit from my new roommates without serious legal ramifications?

Steven R. Kellman, director of the Tenants’ Legal Center, replies:

The security deposit follows the lease. If the new tenants move in, the deposit, as between the landlord and original tenant, is not affected.

If the original tenant takes some security deposit money from the new subtenants (roommates), then this original tenant becomes the roommates’ landlord and must hold the deposit under the same laws as his landlord is holding his deposit.

Regardless of the sub-renters, the original tenant remains responsible to the landlord for rent and damages to the property, if any, under that one-year lease.

The legal ramifications may come not from collecting a deposit from roommates but if the landlord discovers and objects to sub-renting to those roommates. If the tenant is keeping the rent current and taking care of the property, there should be no rational basis to object to the roommates.

Despite this, many landlords will try to object, claiming that the lease was for the original tenant and no others. This is a situation which may, in many cases, be overcome with a proper showing by the tenant that such a restriction attempted by the landlord is unreasonable.

Ted Smith, principal in a law firm representing landlords, replies:

You need to read the lease. Most standard leases prohibit the addition of roommates without the landlord’s prior written consent. It sounds like you want to sublease portions of the house to your prospective roommates.

If the landlord agrees to this, then you may ask for security deposits from the new tenants. Keep in mind that you continue to be responsible for the entire rent on the “master” lease, even though your subtenants may default.

You will also be responsible if they begin causing problems in the house such as disturbing the neighborhood or damaging the property.

Before approval of the roommates, the landlord would have the right to request information about, among other things, their financial wherewithal. Don’t be coy. Let the landlord know what’s going on and try to work it out.

Owner Not Required to Repay Interest

Q: I recently signed a one-year lease on a nice home for which the owner required first and last months’ rent plus a $750 security deposit. The monthly rent is $1,250; therefore I had to pay $3,250 just to move in.

Is the owner legally required to give back the interest on my security deposit?

Property manager Robert Griswold replies:

No. The payment of interest on security deposits is not required by California law, with very limited exceptions for subsidized housing or in certain rent-control areas.

Under California law, your “security deposit” here is $2,000 because the last month’s rent is legally part of the security deposit.

A landlord can collect a security deposit of up to two times the monthly rental rate in addition to the first month’s rent. Therefore, your landlord could charge a maximum security deposit of $2,500.

Landlord Must Give Notice of Inspections

Q: I am a very private person. Do I have the legal right to refuse my landlord’s request to come inside my apartment to do an inspection?

Kellman replies:

The law allows the landlord a reasonable right to enter the rented dwelling for certain purposes such as maintenance, repairs or showing the unit to potential buyers or lenders.

Performing a general inspection is not one of the stated grounds for entering the unit and thus does not seem to be permitted under the law.

However, if the landlord does have a valid reason to enter, there must be reasonable notice given--24 hours at least--before such an entry. The tenant may refuse the landlord’s attempted entry if the day or time is not acceptable.

It is very difficult for a tenant to hold a landlord responsible for failing to make repairs if he or she won’t let the landlord enter the unit to make those repairs. Mutual cooperation and respect benefit both parties.

Breaking a Lease for a Medical Condition

Q: We signed a one-year lease for a trilevel townhouse a few months ago. Unfortunately, my wife’s medical condition has deteriorated and she has difficulty coping with the stairs in the townhouse.

Though the doctors have not finished their tests, it appears that she has a serious heart condition and that we may have to move to a single-level home. What is our legal position if we need to break the lease?

Griswold replies:

Immediately contact your landlord and explain the situation. Though the landlord is under no legal obligation to break a lease (even for serious medical conditions), many landlords will work with you.

The goal should be to find a new tenant who can move in as you move out. Of course, the new tenant must meet the landlord’s rental qualification criteria.

Kellman replies:

In this case, the tenant needs to break the lease and move into a single-level rental based on a serious medical condition.

Though the tenant may have a very good reason to move, the law, unfortunately, does not recognize such circumstances as grounds to cancel a legally binding lease contract.

The lack of an easy way out of the contract should not be a deterrent to the tenant to break this lease with a minimum of cost.

The tenant may simply try to find replacement tenants to take their place. This is called assignment or subleasing.

Generally, the landlord should be contacted to seek approval of such a procedure. If the landlord refuses to approve of an assignment or a sublease, the tenant may use that denial against the landlord’s claim made for lost rent.

The landlord must, by law, help to re-rent the unit. If the landlord does not help, this too may be used by the tenant to defend against a claim by the landlord for lost rent. Rent should be kept current while the tenant is in possession of the unit.

A landlord who does not use reasonable efforts to assist or cooperate with the tenant regarding re-renting the unit will probably be viewed with suspicion at any legal proceeding regarding this lease.

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This column is written by property manager Robert Griswold, host of “Real Estate Today!” (KOGO-AM [600], 1 p.m. Saturdays); attorneys Steven R. Kellman, director of the Tenants’ Legal Center; and Ted Smith, principal in a law firm representing landlords.

If you have a question, write to Rental Roundtable, Real Estate section, Los Angeles Times, Times Mirror Square, Los Angeles, CA 90053. Or you may e-mail the columnists at griswold@cts.com.