Who's been living in my rental unit?

Written by James McKinley, Steven Kellman

Question: I have owned a two-unit apartment building for the last four years. I have month-to-month tenants in one of the units that started renting there after I bought the building. They have a clearly written agreement that states they are the only two tenants and no subletting or other tenants are permitted. However, we are about 90 percent sure that someone else has moved in for the last nine months. He never comes or goes and yet he's there day and night, seven days a week. How do we prove it and what recourse do we have?

James McKinley, an attorney for landlords, replies:

You don't say if your original two tenants are still living in the unit. If they are, you should start by asking your tenants if they have moved in a roommate. If someone else has moved in, you could have him fill out a rental application, and, if he meets the rental criteria, sign a new rental agreement with all tenants; or you could serve a legal notice to perform covenant or quit, followed up by an eviction action if your tenants do not comply by removing the occupant not on the lease. If you feel you cannot prove that there is an illegal subtenant, you always have the option of serving a notice of termination of tenancy.

Question: Many times I have arrived home to a smoked-filled apartment caused by my neighbor who barbeques on his fire escape. I called the fire department, who advised me to shut my windows. This is a health hazard for me. Also, the fire escape is full of debris. Shouldn't fire escapes be free of any items?

Landlord attorney McKinley replies:

Fire escapes are most often found on multiple-story residential buildings, such as apartment buildings. At one time, they were a very important aspect of fire safety for all new construction in urban areas; more recently, however, they have fallen out of common use. Fire escapes are designed for emergency use only, and should not be used for recreation, or cooking, and should not be cluttered with debris. You should speak to your landlord to make him aware of the problem. I doubt your landlord wants any tenants barbequing or otherwise using the fire escape for anything but its intended purpose. The landlord should fit the door or window that accesses the fire escape with a fire alarm to prevent unauthorized use of the fire escape. As many fire escapes were built before the advent of electronic fire alarms, fire escapes in older buildings have often needed to be retrofitted with alarms for this purpose. If your landlord does not respond to your request, you should make a complaint to your city's code-enforcement department.

Steven Kellman, an attorney for tenants, replies:

Smoke, whether from outdoor cooking or cigarettes, is a chemical released into the air, many times treated like noise or odors. It is something that can intrude on or disturb a neighbor, and therefore may be improper and restricted if excessive. Closing one's window to block out a neighbor's barbeque smoke is hardly fair since closing the window also deprives the tenant of the right to have full access to the use of the unit including the fresh air around it. Fire escapes are designed for emergency use to escape fires and not to have barbeque fires set on them. Using fire escapes for recreational use (i.e. as if it were a balcony) is not only an improper use of the safety device, but it may also be dangerous because it was not designed for such use. It may not hold the sustained weight of a barbeque event or it may present other hazards. The accumulation of debris on the fire escape will also impair the intended use -- which is to escape fires -- and perhaps cause more injuries than it was designed to prevent. James is right when he advises to seek some assistance and intervention from the landlord, and if no help is forthcoming, to contact the city.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of "Property Management for Dummies" and co-author of "Real Estate Investing for Dummies," and San Diego attorneys Steven R. Kellman, director of the Tenant's Legal Center, and James McKinley, principal in a law firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.