Rent Watch: Subtenant Unlawful Detainers & Landlord Pet Discretion

Written by jordan on May 3, 2010. Posted in Blog

QUESTION: For many years, I have been living with my sister and her husband in an apartment they rent. The property manager knows I live there, but I pay rent to my sister who pays the property manager. Much to my surprise I learned the hard way that my sister had stopped paying the rent and that an eviction case had been filed against her and her husband. I only found out when I came home one day and found a sheriff’s notice on the front door stating that we would be physically evicted in five days. I never received any court papers and when I asked my sister for the court papers, I saw that I was never named as a defendant in the court case. I didn’t do anything wrong here and I wonder if I can continue to live in this apartment.

ANSWER: A landlord seeking to pursue an eviction, known as an unlawful detainer, must name and serve every adult known to be living in the rental unit with the unlawful detainer summons and complaint. An adult such as you who was not named is not subject to the judgment for possession that the landlord apparently obtained against your sister and husband, which in turn generated the writ for the sheriff’s notice. The only exception is if you were separately served with another paper known as a “prejudgment claim of possession” form which requires you to immediately take certain actions to protect your rights. However, you are asserting here that you weren’t served with any papers. To be sure, you should probably go to the office of the clerk of the superior court that issued the judgment and writ to make sure there is no declaration of service listing you as a recipient of these documents. If there is no claim you were previously served, you can file a post judgment claim of possession in the same superior court, pursuant to California Code of Civil Procedure Section 1174.3. There is a specific court form for this purpose. You will be required to pay a court filing fee or else obtain a fee waiver under the “indigency” standards. Once you file the claim, the sheriff cannot proceed with the physical eviction against you until the court has resolved your status. A hearing on your claim will be set quickly, although the time will be extended if you also deposit the equivalent of 15 days of rent for the unit. Without explaining the legal technicalities, we can tell you that the landlord will eventually be entitled to remedy the mistake of failing to name you and to proceed with the eviction. However, filing the claim may give you some leverage to negotiate a resolution with the landlord either on your own or through your local mediation program, for example to allow you time to vacate or to allow you to become an acknowledged tenant pursuant to a new rental agreement. You should contact a fair housing agency in your area or call Project Sentinel at 1-888-324-7468 for more information.

Question: I recently answered an ad for a vacant apartment. I have a pet Chihuahua so I was only interested in a community with a pet friendly policy. When we toured the property, the rental agent would only show me available units on the first floor. When I asked about units on the second and third floor, he told me that pets were only allowed on the first floor. Isn’t it discriminatory to restrict pets to only one part of a building?

Answer: Landlords have broad discretion to allow or prohibit pets in a rental complex, including the right to limit tenants with pets to certain units with the overall community. Landlords can also impose reasonable rules on pet owners including limiting the size or type or number of pets allowed without being in violation of any laws against discrimination. The answer is different if your pet is a companion, service or support animal prescribed by a treating physician. A service animal performs a task or tasks for the disabled tenant to help the tenant perform normal living activities. A companion/support animal provides emotional support for a tenant with a psychological disability. Under the fair housing laws, a companion, service or support animal is not a pet. A landlord would not be able to limit the location of a companion, service or support animal to certain units in the complex, such as the first floor. If a potential tenant meets the applicant financial screening criteria, the landlord must allow the companion, service or support animal as a reasonable accommodation to the tenant’s disability, if the tenant makes a written reasonable accommodation request. The formal written reasonable accommodation request should be accompanied by a support letter from a treating physician. The treating physician does not have to disclose the actual disability, but must certify that he/she is a physician, is treating the tenant for an eligible disability, and that part of that treatment plan includes the services of either a companion, service or support animal. Landlords cannot charge a pet deposit for the companion, service or support animal but can impose reasonable rules to assure proper supervision of the animal’s activities. Please contact Project Sentinel for assistance in writing a formal reasonable accommodation request at 1(888) FAIRHOUSING.