Landlord Trying To Evict for Non-Payment

Yes, Back on December 2007, I went to pay my rent for that month and the Mgr of the apt stated that she was ordered not to accept our rent, until we paid our arrears in full. I was handed a long list of arrears, dating back to the year 2003 and told the rent payment wouldn't be accepted until all arrears were paid in full. Prior to moving in with my wife in March 2007, the prior primary renter was my wifes ex and his name was the only responsible party and when he removed himself as primary, the mgr harrassed my spouse to fill out a rental application and she refused and stated that I would and they refused to allow me to do so and the ladlord simply placed my spouse as primary without my wifes signature and all arrears from 1993 - March 2007 are the responsibility of the former renter and anything from March 2007 to present are our responsibility, but the landlord is trying to pin all arrears on us and filed an Unlawful Detainer for (Failure to pay "RENT") when we tried paying it, but it was refused. What Motions or actions can we take prior to the trial date and what actions can be taken during the trial, which is scheduled for February 25th, 2008?

[OHlandlord]

Didn't your wife live at the unit through the time when the arrears were accumulated? Perhaps she was on the agreement as a secondary tenant or authorized occupant with her ex? (Didn't she sign the original lease?) Since she was married to the main tenant on the agreement and was living at the unit for the period when the rent was not paid, the LL can pursue either tenant for the money dueduring that time.

When the ex moved out and she remained, she became responsible for the rent due. (Just as a subleasor becomes responsible for the unit once the tenant leaves.) This was a debt that accumulated during their marriage and after it; she lived in the unit at that time and helped accumulate the debt. She needs to pay the LL. If she didn't want to remain responsible for this, she should have moved out when the ex left. He removed himself from the lease when he left. She choose to remain. Did she think she could remain in the unit without her name on any agreement and have no responsiblity for it? (For 5 years?!?!?!) Even if she doesn't sign an agreement, she still becomes responsible as the sole tenant in that unit. The apt. complex's other alternative was to evict her as an unauthorized occupant. They chose to let her stay. She chose to take over the unit and the debt left by her ex. You do not need a written signed agreement to live in an apartment. That does not make you any less liable. His lease ended long ago. Since then the complex (and the state) have created a new agreement between her and the complex. Even if she doesn't sign it.

She can try to take her ex to court to recover the arrears that accumulated during their marriage at this unit, but she would likely only get half of that. She is solely responsible for all arrears after he left. You should make arrangements with the LL to pay this debt. If you set up a payment plan, the LL may elect to stop the eviction.

Since she has been the one to accumulate this debt since 2003, you won't be able to use the ex husband defense to get out of the debt since then. No judge will hold him responsible for the debt for that long a time after he left. You may be able to use it for the period when he lived there (unless you are in an equal property state - equal property also means equal debt). You may be able to use it for the period when he was under original lease *IF* he broke it by moving out early. But you can't hold him responsible for 5 years of debt! At best, his liablity would have ended when the original lease ended. And if the LL allowed him out of the lease, he isn't responsible at all, she is -since she stayed.

Your only other defense would be if the LL has not attempted to collect at all within this time or notified you of any money owed since 2003. Have they listed any money owed on rent receipts? Given you any notice of money owed? Charged you late fees for late paid rent or applied any money towards this old debt? If they have, you won't be able to use that defense either. Truly, your only recourse would be to set up a payment arrangement and pay off this debt. She should not have let this debt accumulate this long. Sorry.

[epoliver64]

Hello,
Thank you for your response, but I believe I may have explained the situation wrong, so allow me to clear it up a little better?
OK, first of all, my spouse lived here since 2003 with the father of her daughter, but were never married and when they moved in, he was the only one to sign the contract as the sole responsible party and my spouse and her kids were only listed as dependant co-residents, period.
He moved out in 2006 and left my now wife and the kids here alone, but since he is the natural father of my wifes daughter, their agreement was that he would continue as the responsible party and continued paying the rent in lew of a child support case.
But when she and I got together and I moved in March 2007, he removed himself from the rental agreement in June, 2007. Immediately after he did that, is when the Mgr approached my wife and told her that she needed to fill out a "NEW" rental agreement with her as the "NEW" responsible party.
My wife refused to agree to that, because she isn't a citizen and not working and she told the Mgr that I would be the one filling out the new agreement application, because I'm the provider and the Mgr was refusing to allow that and that's when I myself contacted the Landlord and she agreed to allow me to fill out the application and I did so and turned it in and we thought that was that.
Three months later in September 2007, the Mgr approached me concerning a different matter and asked for my wife and I told her that she can speak to me about it and she refused and I asked her why and she told me that I'm not on the rental agreement and only my wife is and she can't speak to me and I told her what on earth was she talking about, that she knows I filled out the papers and she said the Landlord rejected it, because it wasn't filled out correctly and my wife is the responsible party and I asked her how she figured when she knows damn well my wife never consented to that, nor did she fill out or sign a single document and why has it taken three months for them to inform us of this. The Mgr just shook her head and said she didn't know, but couldn't talk to me.
I immediately proceeded to try making contact with the landlord and she wouldn't take my calls, nor return my messages and it went on like this until December, 2007 and when I went to pay the rent for that month, is when the Mgr refused our rent and sprung that long list of arraers on us dating back to 2003, that the father of my wifes daughter (Mr. Aguilar) was absolutely responsible for.
The very minute Mr. Aguilar walked into the landlords office back in June, 2007 to remove himself from the contract, is exactly when the landlord was obligathed to disclose the arrears before ever allowing him to remove himself, because a whole new responsible party was about to take over and she never did so and just allowed him to remove himself and she never disclosed anything to me when she allowed me to fill out the application, nor did the Mgr disclose anything about any arrears to my wife when she was harrassing her, trying to get her to fill out the new application and neither of them said anything until December 2007 when we went to pay our rent and it was refused, then the landlord files an Unlawful Detainer for non-payment of rent and before she did file the case, I wrote and mailed the landlord a letter stating that I would be glad to negotiate a payment plan for any arrears my wife and I may have incurred from the time we supposedly became responsible back in June 2007 until present, but we are absolutely not going to be a party to anything prior to that and even inclosed the December rent payment with it and the following week the check for the rent returned by mail and the following day we were served with the court case summons.
If my wife was already listed as a co-responsible party since the beginning, then there wouldn't have been the need for them to try getting my wife to fill out any new rental agreements, nor allowing me to fill one out then rejecting it and never informing me of it and taking it upon themselves to illegally create an erroneous rental contract with my unemployed, non US citizen spouse as the new responsible party. Correct?
Mr. Aguilar (former responsible party) and my wife and I are close friends and he is going to appear in court for the defence and testify to never being informed of any outstanding arrears at all. Not during the course of his tenure as the responsible party, nor on the day he saw the landlord face to face when he removed himself and my spouse also found an old check book of Mr. Aguilars and discovered several checks written for the rent that were paid on time, but the list of arrears we recieved back in December 2007, shows late fees for those check dates and they will be presented in court, as well as photos of evidence of the horrible ****roach infestation and the extreme deterioration of the apt itself to show absolute proof of an uninhabitable dwelling, which is part of how we filed the response to the summons, as well as the fact that the landlord refused to accept the rent that was paid in good faith, because she's trying to hold us responsible for arrears we're not liable for.
I hope this explains our situation a little better, so that you can provide us with some answers that may help and thank you for your time and patience.

[OHlandlord]

She has several problems. Since your wife was an adult actually living in the unit, she may be considered jointly responsible for the money that is due from that period depending on your state's laws. (Also, some states still recognize common-law marriage.) One does not need to sign a lease or fill out the proper forms to be considered to be in a rental agreement. If no written agreement is in force but the LL still accepts rent for the unit you are livng in, the state *automatically presumes* there is one for you and considers the occupant on a verbal month to month agreement. The management people were only trying to get one in writing, but your wife refused, so one was presumed. (It might have been better had she not refused, since it would have proven that she would be the "new" tenant and the one responsible from them on.) This is similar to a roommmate situation. One leaves, one stays. The one who stays then automatically becomes the responsible party since she was already on the paperwork. If the one who stays signs a new lease, the old one is void.

The fact that they offered to make one with her will show that there was some sort of understanding of an agreement. (She did not move out when she refused to sign one. This shows her consent whether she signs or not. If she hadn't consented, she should have moved.) Plus the fact that she remained in the unit long after the original tenant left. She is an adult, and is capable and able to be the responsible party for a bill, and not just a dependent -that is for tax purposes only. (Not being a citizen is irrelevent.) Had the ex-BF not paid, they would have pursued her for the payments because she lived in the unit and enjoyed the benefits of the unit for that period. The original lease they had with the ex-BF probably expired long before he ever left. And I doubt any agreement was ever in place after that.

The agreement between him and her about a lack of child support (which by the way isn't legal without a court's approval) and the substitution of rent has nothing to do with the apartment management and they are free to ignore it. Unless this was signed off on by a court, it isn't legally binding. It has no merit to management at all. They didn't care who paid her rent, as long as she was still living there & the original agreement was expired, she had a verbal or unwritten agreement with management.

You say you filled out the forms to apply, but did you ever sign a lease? Was one ever offered to you to sign? If not, that should have been a clear sign that you were not approved. They do not need to make a declaration of this. It was up to you to apply and pursue this PRIOR to moving in. You are not on any agreement with them, were not approved to live there, and you may be considered an unauthorized occupant now. She was approved to live there as evidenced by the original agreement with the ex-BF. You were never approved (and should have been approved before you EVER moved in.) Thus, they have no reason to speak to you. You aren't even supposed to be there according to their records. You probably will not be allowed to speak in court since you are not a party to this suit. You will have to sit in the gallery. Your wife will have to defend herself. (Unless you have a law degree, the court will probably refuse your attempts to defend her.) You are not involved in this suit. (I know your relationship with her makes you want to protect her, but this is not how courts work.) If she doesn't speak English well, a translator can be provided by the court.

When the ex-BF removed himself from the agreement, they do not have to disclose damages at that time. The law says damages (including monetary) only need to be disclosed by deposit statement after the unit has been vacated within a certain amount of time (usually 30 days). Since it was not vacant, and since one tenant was still staying, the unit was still occupied. The deposit was still in place, and they simply removed him from the agreement and attempted to put her on. She refused, but failed to vacate too. She can't stay and yet still not be responsible. If she stays in a unit after the other tenant leaves and is removed from the agreement, and they allow her to, and the rent continues to be paid, it is assumed she has a verbal agreement with them. She should have moved out when he removed himself and none of this would be an issue now.

Since someone was still living in the unit from the original agreement, there is no reason to disclose the damages. Those could be deducted from the deposit upon vacating. (I'm not sure why they chose to bring them up now unless they have grown larger than the deposit.) I don't think his testimony will have any effect since the law says they have no duty to disclose damages if the unit is not vacant. The other tenant was still there. That will be their defense to his testimony. (Give me your state name and I can give you the state statute on this.)

The ex-BF's appearance in court will give the management an opportunity to serve him for the payment of these bills too, so he will soon have a case against him too. (Sorry) Her best lines of defense of this are:
1) The fact that they never pursued payment of these arreas previously (whether from him or from her). Since they didn't attempt to get paid or bill either party for these old arrears previously, it might be considered a waiver of their right to these monies. Many states wouldn't allow a person to collect an old debt if no attempts have been made to collect it previously. **This may be your best defense.** They could have issued a statement of monies owed to either party, filed a pay or quit notice, or filed eviction for lack of payment at anytime since the first arrears. If they didn't, it may prove they waived the right to collect them. Have your wife ask them for copies of the attempts to collect this bill when it goes to court to prove to the judge that they made no attempts in 4 years.
2) Anything that was in arrears before the ex-BF left may be able to be billed to him solely, if he takes responsibliity for them in court. Is he willing to do this?
3) Does she have a copy of the original lease agreement? Can she show where she is not listed on the agreement? Can she show where she never signed? Did she ever fill out any paperwork to allow her to live there? She may need copies of these for court. You can be sure management will have their copies. Showing these might relieve her of responsiblity for monies woed before he moved out.
4) If the child support abeyance for rent was court approved, she could show that in court so they could attempt to pursue the ex-BF first.
5) Have they attempted to collect from the ex-BF before they pursued your wife? He was the primary financially responsible party. They should have pursued him first (at least for the money before he stopped living there). This won't help your friendship with him, but it may help your wife's case. She could argue that he was the responsible party up until he stopped living there and that they should pursue him for those arrears before they consider your wife. But your wife will be the responsible party for any arrears after that and will have to pay them.
6) Did you attempt to pay the last month's rent that they refused? (I'm guessing that you did.) Or was it your wife? They can refuse your payment. You don't rent there officially. You were never approved to be there. No LL will accept the rent from an unauthorized occupant. Doing so could jeopardize their stance on the person's occupancy. If they refused to accept it from your wife, that's another story. She was approved to live there. She could question why they refused to accept rent from her. Also, when was the lease up? Did they refuse because the lease had expired and you were now holding over?

[epoliver64]

Hello And Thank You For Your Reply,
OK, We asked the Mgr several times to get us a copy of the original rental agreement and she's refused everytime and we tried making contact with the landlord long before any case was filed to get a copy and we never got any results, so I have no idea what so ever as to what's exactly on this agreement, but according to my wife and her former BF, he was the absolute only one who signed anything and he was the only one listed as the renter of the apt and my wife and kids were listed as living with him in his rented apt. Period. And again they both steadfastly state that they were never disclosed that any arrears were owed what so ever and the very first of this wasn't disclosed to us until December, 2007 when we went to pay the rent for that month and the rent was offered by money order and refused by the Mgr under orders from the landlord not to accept it, unless these erroneous arrears were paid in full together with the rent and the landlord refused to entertain any kind of negotiations offered by my wife and I.
I can't argue with you concerning the landlord not being obligated to disclose these alleged arrears to me, but she was absolutely obligated to disclose them to Mr. Aguilar on or before the day she met with him when he removed himself from the rental agreement, and or my wife when they tried getting her to fill out a rental application.
That's another very strong point in our favor.
"They Did NOT Try getting my wife To Sign A New Agreement Taking Over As The Responsible Party, They Tried Getting Her To Fill Out An "Application" For Becoming A New Tenant." So therefore, that proves she was never any kind of co-renter, nor co-responsible signer of any sort, just someone who was living as a dependant with her kids under Mr. Aguilar and when he moved out, it just went on the way it originated with him continuing as the sole responsible "Renter" and "HE" was paying the rent directly to them himself with his own checking account. You see, there's way more than what meets the eye here. At least 95% of the renters here are either illeagal aliens, or aliens on visas and that enables this lady to run the place the way she wants and enables her to manipulate these people as she pleases and allows her to raise rent without putting a single dime toward the place and doesn't care if the place is completely infested with roaches and allowing the place to literally fall apart and as soon as I started complaining to her about these unhealthful issues and made it very clear to her that she was no longer dealing with someone afraid of being deported and someone who knows his rights as a consumer and not afraid to excersize them is when she started her mission to push us out any way she could.
I must disagree with you regarding their failure to say anything to me after I filled out the rental application. If I had filled the application out incorrectly, then I should've been approached about it and asked to correct any mistakes, or include any lack of info, or what ever was wrong, but I'm a very intelligent and educated man with a 2nd year college IQ and I'm a supervisor with United Health Care and if there's anything I know how to excecute, it's an application of all types and I know I properly filled out the application, but that landlord can't have someone like me living here, because she knows well enough someone like me will blow a very big whistle on what she's doing with this place and mostly what she's failing to do with complete disregard for the human lives living here.
And why would a landlord try getting someone (my wife) with no income, no credit and who's not a legal citizen, nor permanent resident of this country to fill out a rental application and exclude me, a well paid employed US Citizen of this country with established credit? Easy, it's no different than why she's rented to all the rest of the people who live here, because she can establish full control over the lives of these vulnerable and uneducated people who's afraid to challenge her, concerning the way she runs this place and the condition she allows it to remain in, that's why!!

Mr Aguilar is ready to testify concerning the arrears and willing to take the chance that she might, or might not pursue collections of the arrears from him, because he has absolutely nothing to lose at this point, because he's only a legal resident of this country, with limited income and no assets to go after and is dying of cancer, so she has nothing coming from him either.
We are from California to answer your question and I most certainly did file the proper papers to have the court include me in this case as a resident in the apt wheather I'm on the agreement or not according to the laws of this state and although I do not have a law degree, I've dilligently educated myself in this area of civil law and I was the one who filed all of our court papers in response to this womans complaint and more than ready to blow her out of the water and have all the proof I need to win.
Also, my spouse and Mr. Aguilar weren't together nearly long enough to be considered Common Law according to the laws of California.

[OHlandlord]

If your wife and her ex-BF's memory are correct, she MAY not be responsible for any arrears before he left. She IS responsible for any arrears after he left.

Management was not obligated to disclose arreas when he removed himself from the lease. As I said, state law only requires any damages (and arreas are considered a monetary damage) until the unit is completely vacant. Since she stayed there, and his deposit remained there, they were under no obligation to disclose these. As long as an occupant remains and the deposit remains, they do not need to talk about damages.

"They Tried Getting Her To Fill Out An "Application" For Becoming A New Tenant." So therefore, that proves she was never any kind of co-renter, nor co-responsible signer of any sort, just someone who was living as a dependant with her kids under Mr. Aguilar and when he moved out ... And why would a landlord try getting someone (my wife) with no income, no credit and who's not a legal citizen, nor permanent resident of this country to fill out a rental application" Sorry, but that proves nothing. Management can ask for a new completed application at any time, even from a tenant during a lease so they may update the personal information they have on file. This proves nothing. When he moved out, management can consider him as abandoning the unit (since he was no longer living there). When they asked for an aplication from her, they were attempting to obtain her personal information for someone who had become their tenant (whether they wanted her or not). They may not have wanted her to stay there after he left since she had no income. But without her personal information, they couldn't prove it. Why they denied you I couldn't say without screening you myself. But LLs look at many other things besides credit to approve an applicant. I look at criminal and civil court records, former LL references, sexual predator databases, former addresses, credit reports, level of income, income to debt ratios, employment history, banking history, history of debt and payments on those, along with a slew of other things. I only reject an applicant in writing if I see something on the credit report. All others are contacted only if they are approved.

"I must disagree with you regarding their failure to say anything to me after I filled out the rental application." You may disagree, but again, the law is on their side. There is no law that states a LL must notify someone who has been rejected as an applicant. The only law that applies to this is when an applicant has been rejected for something on their credit report. In that case, they must send a specific rejection letter. At no other time are they obligated to do so. It is up to the applicant to pursue this and question as to whether they have been accepted. Unlike an insurance application where a person has the right to insurance, an applicant for a rental unit does not have a right to the unit. So rejection does not need to be disclosed unless the applicant questions it.

I seriously doubt that the court will allow you to speak towards this case. You have no basis as a tenant, and were in fact rejected as such. (That would be all that the LL would have to show to get you tossed back to the gallery.) You have no agreement with the LL whatsoever to live there. As a rejected applicant, you are an unauthorized occupant (a trespasser so to speak). The law states that you may not represent another person unless you have a law degree and are a practicing attorney. So even though you are well educated, unless you are a licensed attorney, you will likely be excluded from this case altogether. None of this debt is yours, so you should not be addressing the court on it. I hope when those court papers were filed by you that you weren't the one to sign them. If you have no interest legally in this case, those papers may all be rejected as well.

As I said before, their best defense is that the management never notified them previously of these arrears and never tried to contact or collect from them for these. That alone may bet these wiped out (with the exception of anything from 2007). The ex-BF does know that they will attempt to collect from his next-of-kin once he dies, doesn't he? They will attempt to collect from the executor of his estate. The final bit of good luck for you is that you are in CA. Judges there are tenant friendly and this may work to your wife's advantage. Tell her to be well prepared to present her own defense. Good luck.