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TeaBagz

Can a homeowner evict a subtenant

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I'm renting a room in a house and pay the master tenant, when I moved in I was told by the master tenant that my rent was going to the owner. I have always paid the master tenant and have never actually even talked to the owner. Apparently the owner had no idea anyone else was living there and she is now trying to evict me. I just received an amended summons and complaint, in the complaint there is a 60 day notice and a signed proof of service with the wrong name typed in and then crossed out and my name hand written next to it. I went to the courthouse and got a copy of the original complaint (which they filed but never served me with) in the original complaint it has the wrong names on the 60 day notice and on the proof of service without my name hand written in, my name is nowhere on the original complaint or the 60 day notice (which was said to have been nailed and mailed, with the wrong name on it)

 

Anyway, my question is this: Can the owner of the property evict me when there is no landlord-tenant relationship (she is only trying to evict me, not the master tenant) also, how the hell can the courts allow a homeowner or the homeowner's lawyer to amend a proof of service to a different name? Especially when they were not the ones that signed the papers either? Isn't that perjury for the person that did sign the proof of service? If I swear that I mailed papers to Mr. Smith and sign and file a POS with the courts and someone comes along and amends the name on my POS to say I served Mr. Jones the courts consider that proper service? How is this legal to change the name on a proof of service, unless I have a DeLorean with a flux-capacitor that I can get up to 88MPH I wouldn't think that the courts would allow someone to amend the name on a proof of service that they didn't sign...if anyone can help me understand how that works I'd really appreciate it.

 

Thanks

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Here's how it works:

 

YOU...GOT...THE...NOTICE of the lawsuit.

 

Period.

 

That's what service is designed to do. No matter how messed up it is, YOU...GOT...IT. That's all the court needs to know.

 

If you appear in court, it means you accepted it, as is, and there's nothing to say about it.

 

If you want to blow it off and not respond and not attend, there will be a default judgment against you. Then you can file to set aside the judgment and claim improper service. Which is not true because YOU...GOT...IT and your motion will fail.

 

Now that we have that out of the way, let's talk about defense.

 

Assuming you want to stay, it occurs to me that you are correct in that the owner has no standing to evict you because you rented from the tenant who, as far as you are concerned, had "apparent authority" to rent to you. Google "apparent authority."

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I'm not saying I didn't get the summons and complaint for the unlawful detainer. If you look again what i said was that I never received the 60 day notice, the first time I saw the 60 day notice was in the summons and complaint which I did receive, (which was amended because they needed to change the name on all the paperwork, including changing the name on an already served 60 day notice which I never got) They mailed the 60 day notice to the wrong person, I was not given 60 days to move, I didn't even know I needed to move, I was given 5 days to answer the complaint and in the complaint which I received was the 60 day notice with my name written in next to the wrong name that they crossed out. I went to the courts and got a copy of the original complaint and my name is not on any of the paperwork, they were allowed to amend the papers which I understand is totally fine if you need to make minor changes, but if you already served a 60 day notice to Joe Smith I would think that you would have to serve a new 60 day notice to Bob Jones not just cross off Joe's name and write in Bob because Bob didn't get a 60 day notice and you can't swear to the courts that you served Bob anything if you mailed everything to Joe, it's perjury. If I'm wrong please explain how that would work, or why even have anyone fill out a proof of service at all? 

 

 I do appreciate the info for the apparent authority that is what I was looking for and helps tremendously. I don't plan on staying, but I do plan on fighting this unlawful detainer because I have not done anything wrong, I just need the time to find a new place and move, and I do plan on taking the master tenant to court for moving expenses, and since she committed fraud by telling me that my money was going to the owner for rent I want to see if I can get that back as well. I also just found out she doesn't pay anything and it's her mom that owns the house. 

 

On a side note, I still don't understand how anyone can amend a signed proof of service, (other than the person that actually signed it, even then unless they actually did mail paperwork to the name they are putting on the proof of service then it is a lie) because it is telling the courts that something was done under penalty of perjury, if you change the name of who was served without actually serving that person you are swearing to something you didn't do?

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OK, then you appear to have two defenses for which you can move for dismissal.

 

That you were not served the "termination" notice (different than eviction notice) which is 60 days if you had been renting there at least a year, 30 days if you had been renting less than a year.

 

And that the owner has no authority to terminate your tenancy because your contract was with her tenant who had "apparent authority" to rent you the room and, indeed, represented that he/she was renting the room on behalf of the owner.

 

To make up for my earlier brusqueness I'll give you a little more help. :)

 

In California "apparent authority" is also known as "ostensible agency."

 

Quote

"In California, ostensible agency is defined by statute. Civil Code section 2300 provides: `An agency is ostensible when the principal intentionally, or by want of ordinary care, causes a third person to believe another to be his agent who is not really employed by him.' (See also Civ. Code, § 2317.) Civil Code section 2334 further provides: `A principal is bound by acts of his agent, under a merely ostensible authority, to those persons only who have in good faith, and without want of ordinary care, incurred a liability or parted with value, upon the faith thereof.' Nominally, these statutes require proof of three elements: `"[First] [t]he person dealing with the agent must do so with belief in the agent's authority and this belief must be a reasonable one; [second] such belief must be generated by some act or neglect of the principal sought to be charged; [third] and the third person in relying on the agent's apparent authority must not be guilty of negligence."' (Stanhope v. L.A. Coll. of Chiropractic (1942) 54 Cal.App.2d 141, 146 (Stanhope).)" (Mejia v. Community Hospital of San Bernardino (2002) 99 Cal.App.4th 1448, 1456-1457.)

 

The statutes noted are found at:

 

http://leginfo.legislature.ca.gov/faces/codes_displayexpandedbranch.xhtml?tocCode=CIV&division=3.&title=9.&part=4.&chapter=&article=

 

And here's a few cases that mention "ostensible agency."

 

https://scholar.google.com/scholar?hl=en&as_sdt=4%2C5&q="ostensible+agency"+sublessor&btnG=

 

I haven't read them so I don't know if they will be any help.

 

Good luck.

 

 

 

 

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Wow, you rock! I really appreciate the knowledge bomb you just dropped on me, it's just what I needed. You don't happen to live anywhere near San Joaquin County do you? If you do then I owe you a beer, more like a case of beer! Thanks again for all the info and pointing me in the right direction, I've been trying to find this kind of info for a few days now with limited results, especially when it comes to any kind of cases or case law. Thanks you!.

 

(Although I will probably be back to pick your brain again soon)

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20 hours ago, adjusterjack said:

Assuming you want to stay, it occurs to me that you are correct in that the owner has no standing to evict you because you rented from the tenant who, as far as you are concerned, had "apparent authority" to rent to you. Google "apparent authority."

 

And what act of the landlord, pray tell, do you see that provided apparent or obstensible authority to the master tenant? I'm not seeing it in the facts the OP provided. Look at the second element of the case you cited — there needs to be some act on the part of the supposed principal (the landlord here). 

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4 hours ago, Tax_Counsel said:

 

And what act of the landlord, pray tell, do you see that provided apparent or obstensible authority to the master tenant? I'm not seeing it in the facts the OP provided. Look at the second element of the case you cited — there needs to be some act on the part of the supposed principal (the landlord here). 

 

I'm not quite sure what you're asking, when you say "what act of the landlord" are you referring to the owner who is landlord to the master tenant, or to the master tenant who is landlord to the subtenant (me)? I do believe I can cover both either way, that is if I understand what your asking.....the owner/landlord to the master tenant is also the mother to the master tenant and has stated that she bought the home for her daughter and the house will be her inheritance when she passes. (apparently she bought a house for each of her daughters that they will inherit when she passes). seeing that the owner/landlord has purchased the house for her daughter/master tenant/my landlord. I think that would count as a pretty solid act on the part of the supposed principal (owner/landlord/mother to master tenant) that authority was given seeing that the house is her inheritance.....but I don't really know for sure, hell there's only a 25% chance I actually understood your question to begin with anyway. Let me know if that works or if I am totally off target and clueless to what you were asking. Any input would be awesome, thanks. (totally new to all this but trying to learn as much as I can in the short time I have, a crash course in unlawful detainers just hope I don't crash and burn when it's all said and done)

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1 hour ago, TeaBagz said:

 

I'm not quite sure what you're asking, when you say "what act of the landlord" are you referring to the owner who is landlord to the master tenant, or to the master tenant who is landlord to the subtenant (me)?

 

The owner who is now evicting you. In order for the master tenant to be the agent of the owner under the concept of obstensible agency the owner had to do something at the time you negotiated your lease with the master tenant that would indicate to you that the master tenant had the authority to make that lease agreement. Simply being the daughter of the landlord and the landlord saying she'd inherit the property when he died doesn't do that. Nothing about those things says she's authorized to enter into leases on his behalf. What words or acts of owner can you point to that were done while you negotiated the lease that conveyed to you that master tenant (daughter) had that authority?

 

In general, the master tenant would have the right to sublease, however, unless the lease between the master tenant and landlord prohibited it. Did you ask to see that lease before you did the sublease? That's something every subtenant should ask to see to ensure that the primary tenant does indeed have the power to sublease space. Do you know if the lease prohibits that? 

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Maybe I'm wrong here, but how would the subtenant know one way or the other what the owner told the master tenant (daughter) if the master tenant (daughter) expressly or impliedly had the authority to rent out the room?

 

 

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2 hours ago, adjusterjack said:

Maybe I'm wrong here, but how would the subtenant know one way or the other what the owner told the master tenant (daughter) if the master tenant (daughter) expressly or impliedly had the authority to rent out the room?

 

 

The only thing I know are the things that the master tenant has told me, which are turning out to be mostly lies. When I first moved in over a year ago, she calmed to be part owner with her mom and that the deal they had was that she paid the property tax and her mom would pay the mortgage. When I moved in there was another tenant living there that was in the process of moving out, and there is actually a third tenant still living at the house now. I never spoke with the owner, but it does say "generated by some act or neglect of the principal", what would you considered to be neglect of the principal? Would not knowing what was going on for well over a year at the house she owned be considered neglectful? I know if I owned a house I would be sure to check in and make sure everything is copacetic, unless of course I had someone living there that I authorized to manage it for me, like a daughter maybe...the only flaw I see for that to work is the timing, I wouldn't know at the time I negotiated moving in that the owner never comes around, and seeing that I never met or talked to the owner there is nothing else I can think of that would work to meet that requirement....

 

So, what does that mean for my defense. I was under the impression, from everything I have been reading online that there has to be a landlord-tenant relationship in order to evict someone with an Unlawful Detainer action, so if the owner has no landlord-tenant relationship with me, which she doesn't, I was under the impression that she would have to evict the master tenant and all other occupants in order to evict me because she has a landlord-tenant relationship with the master tenant which gives her standing to bring an unlawful detainer against the master tenant but she has no standing to evict just me....am I wrong about this? and If I'm right what is the process to stop the eviction she has filed? and if I'm wrong Do I have any other options besides the fact that I was not served the "termination" notice because I have a feeling that that defense doesn't work all that often, even when it's true and there is proof...I don't want to bank on the fact that the judge will dismiss the case on that alone, I'd like at least a few things to be able to fall back on. (just for the record, I do plan on moving as soon as I find another place but I don't plan on having an eviction on my record just because her daughter decided to commit fraud in order to have a little extra cash every month) any advice would be great! and I thank you in advance :)

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Let's back up the truck a little. You've been served a summons and complaint and you wrote that you have 5 days to answer.

 

These are the forms you use.

 

https://www.courts.ca.gov/documents/ud105.pdf

 

https://www.courts.ca.gov/documents/mc025.pdf

 

Google California how to answer unlawful detainer complaint and you'll find several helpful resources.

 

 

 

 

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On 5/6/2019 at 1:57 PM, adjusterjack said:

Maybe I'm wrong here, but how would the subtenant know one way or the other what the owner told the master tenant (daughter) if the master tenant (daughter) expressly or impliedly had the authority to rent out the room?

 

The subtenant wouldn't know about it unless the subtenant had been told that by one of them. But if the owner told the master tenant that the master tenant had the authority to lease out the room, that is actual authority, not apparent/ostensible authority. Black's Law Dictionary, 8th Ed., has a great definition for apparent authority: "Authority that a third party reasonably believes an agent has, based on the third party's dealings with the principal, even though the principal did not confer or intend to confer the authority." (Italics added.) As you can see from what I put in italics, the focus of apparent authority is the acts/statements of the principal to the third party.

 

As a result, it is the acts of the principal (the owner in this case) that would reasonably indicate to the third person (the OP) that the agent (master tenant) had authority when, in fact, the agent did not have that authority that gives rise to apparent authority. That is why I asked what acts of the owner lead the OP to think the master tenant had the authority to make the lease. That's important if you want to raise an apparent authority defense in this case. 

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1 hour ago, Tax_Counsel said:

As a result, it is the acts of the principal (the owner in this case) that would reasonably indicate to the third person (the OP) that the agent (master tenant) had authority when, in fact, the agent did not have that authority that gives rise to apparent authority. That is why I asked what acts of the owner lead the OP to think the master tenant had the authority to make the lease. That's important if you want to raise an apparent authority defense in this case. 

 

"The subtenant wouldn't know about it unless the subtenant had been told that by one of them."

*I was told by the master tenant when I first moved in that she was part owner with her mom, and she pays the property tax and gives the rent money to her mom who pays the mortgage. Later she changed her story to her mom bought the house to give to her as her inheritance and her rent covers the property tax. Ends up it was all bullshit, the owner stopped by and my girlfriend spoke with her (I was at work), ends up we were the only one's paying rent, the owner/her mom said she doesn't pay anything, nada, nothing, not even the property tax or any bills, and neither does the other tenant! Then her mom said she planned on selling the house and everyone was going to have to move, yet my girl and I are the only ones on the eviction complaint?! I doubt her mom is planning on selling the house, I don't believe anything this whole crazy family says. It's insane... 

 

So, I get actual authority (that one's  easy), and I'm pretty sure I understand apparent authority, what I am wondering is what happens when you cannot prove apparent authority, say you never met the owner or spoke to the owner, but the master tenant made it appear that the owner knew you were renting a room. Is that now just Fraud on the part of the master tenant, and the owner isn't on the hook for anything? what are the consequences for both situations?  Either way wouldn't the owner still have to evict the master tenant in order to evict the subtenant because the landlord-tenant relationship is still between the subtenant and master, not the landlord?

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17 hours ago, adjusterjack said:

Let's back up the truck a little. You've been served a summons and complaint and you wrote that you have 5 days to answer.

 

These are the forms you use.

 

https://www.courts.ca.gov/documents/ud105.pdf

 

https://www.courts.ca.gov/documents/mc025.pdf

 

Google California how to answer unlawful detainer complaint and you'll find several helpful resources.

 

Thank you :)

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