Complaints about the tenants.
Question
My tenants have recently moved into my rental home in Los Angeles on a 1-year lease. I have recently discovered that instead of 4 children and living with 2 adults in the 3-bedroom 1500 sq ft home home, there are now approximately 7 Children and 2 adults. I have also received complaints of the tenants being on the roof, loud music, parents never being home, etc. I am concerned about the wear and tear on the property and was told that I can evict them for misrepresentation of occupants. Is this possible and how do I notify them?
Answer
You may be able to terminate the lease based on certain of the nuisance issues you mention. CA allows use of an “unconditional notice to quit” for a number of lease defaults – including committing a nuisance – so that the tenants cannot remain by curing the defaults. Whether you utilize a “cure or quit notice” or an “unconditional notice to quit” you will need to provide the court with written documentation showing that you served them with a notice regarding the matter in accordance with CA law. If it was a “cure or quit notice” you will need to show that they failed to cure.
Theoretically, tenancy can, as you mention, be terminated because of misrepresentation. However, there are potentially two important issues related to the problem of having more children in the home than was originally represented and using that fact as a reason for eviction.
One issue is that a judge may not consider having 7 children rather than 4 is a material default and not allow eviction because the judge considers it too severe a penalty for tenants for that issue. He may also refuse because the tenants can provide a reason for adding children that he considers an acceptable excuse for the default. Of course, whether or not the relevant lease clause(s) are legally sufficient can also be a factor.
Another issue that needs consideration is that there is a risk of being accused of fair housing discrimination when children are involved. Federal fair housing law covers 7 protected classes, of which the most obvious issue related to occupancy limits is “familial status.” The familiar status protected class is to prevent unfairly limiting housing options because of children in any “family group,” with that term defined quite encompassing. Some state and/or local jurisdictions have even more restrictive laws regarding discrimination against children. A landlord’s occupancy policy that directly or indirectly excludes or even restricts children could be a violation of fair housing laws.
I assume that you have spoken with the tenants and know the reasons why the extra children were brought in. If you know those facts, you need to compare them with familial status discrimination laws at each level of government to see whether it’s something you want to pursue. For example, adoption, guardianship, and other reasons for additional children can provide protection for tenants. The possibility of additional wear and tear will usually not be an acceptable reason to restrict the number of children.
A landlord can sometimes enforce occupancy limitations based on the fact that the property is not suited for occupancy by so many people. Landlords may set their own reasonable occupancy standards for their rental properties and there are a number of reasons why landlords may want to restrict the number of occupants in the dwelling unit, including health and safety considerations or property component issues that might create a physical limitation (e.g., water supply or septic tank capacities). However, unreasonable or overly restrictive occupancy standards may be in violation of federal, state, or local fair housing laws.
Increased wear & tear is not likely to be an acceptable reason for limiting occupancy. Increased utility costs would more likely be acceptable, but then a lease clause stating increased rent for more people should probably be included in the lease agreement.
However, in all cases, anything that is applied to one unit of a property must be applied to all similar units and to all occupants. For example, a landlord can’t limit a two-bedroom unit to a couple and one child rather than allow two children, no matter what the ages and sexes of the children. Also, you can’t charge more rent for an adult and one child than for two adults who are applying to rent a similar unit at about the same time.
A commonly utilized standard for rental occupancy limits is the Department of Housing and Urban Development (HUD) guideline that “an occupancy policy of two persons in a bedroom, as a general rule, is reasonable under the Fair Housing Act.” However, landlords should note this was intended as a guideline, not as the rule, for maximum occupancy of the dwelling unit. In fact, HUD directives for investigating discrimination complaints regarding occupancy limits, take into account other limiting factors such as the size of bedrooms, size of the dwelling unit, the capacity of sewer, septic, and other building systems, and any state or local occupancy requirements.
There may be local zoning or building occupancy limitations that apply to rental units. Some localities have based guidelines on the Uniform Housing Code (UHC) model code standards. The UHC standard provides occupancy guidelines based upon square footage rather than the number of bedrooms.
Another standard sometimes mentioned in landlording articles references the BOCA codes for occupancy standards. Building Officials and Administrators (BOCA), a national nonprofit member service organization publishes a series of model local building and construction codes. A maintenance code established by BOCA for guidance to municipalities for health and safety issues on existing properties has sometimes been referenced as a safe harbor standard for setting occupancy
limitations. The code provided guidance on the maximum number of persons who could safely occupy a building without overcrowding, however the code was not created to use for habitability purposes.
The size of your unit (1500 sf) makes things much more difficult than if it were a 350 sf unit. Showing that 2 adults and 7 children are too many occupants will depend on any governmental standards that are usually enforced in the area of the property’s location and ultimately on a judge’s opinion on the issue. Because occupancy limitation litigation has risks of losing or even worse evolving into fair housing complaints, you need to proceed with care. Because of the issues involved, some of which can be considered gray areas, I advise you to consider consulting an attorney who is competent regarding the issues, usually represents landlords in such matter, and, preferably, does so in the court of jurisdiction and before the
judges you would be facing in that court.