Legal / Real Estate Inquiry:

Question Details: In March of 2009, we rented our CA. home to a couple, whom are both named/signed upon a one year lease agreement. However, Lessor #1 has recently vacated the premises, and therefore wishes not to pay the monthly rental fee. And, despite the fact that Lessor #2 remains within the home, paying rent in a timely manner, Lessor #2 has simultaneously informed us that she can longer afford the full month's rental payment without the assistance of Lessor #1. Further, Lessor #2 claims a recently filed bankruptcy, planning to add us to the bankruptcy as soon as possible. What legal rights do we retain?

Asked 7/24/2009 under Real Estate | 148 View(s) | More Legal Topics

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Deborah Barron / Barron Law Offices Answered 2 years ago | Contributor with 0 answers This attorney is licensed in California

Lessor #1 is still liable for the full amount of the remaining lease.  Lessor #2 is filing bankruptcy which means after it is filed you can file a motion to lift the stay so you can evict her.  It will buy her a few months though.  You could bring a small claims action against Lessor #1 but you would still have to collect on the judgment. 

As to Tenant #2, since you not win a judgment for eviction before they filed for bankruptcy, you can’t deliver a termination notice, let alone start the eviction process. This prohibition is known under bankruptcy law as the “automatic stay.”  You'll need to go to the federal bankruptcy court and ask the judge to “lift” or remove the automatic stay before you can evict the tenant (once they actually fall behind in their rent).  In most cases, you’ll get the stay lifted within a matter of days and then you can proceed with your termination and eviction.

As to Tenant #1, they are still liable under the lease, both jointly and severally.  This means they are responsible not only for there share of rent but for the amount of the entire monthly payment.  If they do not pay you, you can proceed against them in small claims court.  However, you will need to try and find replacement tenants as soon as it is practicable.  The judge in small claims will ask if you attempted to do this, or as it is known in legalese, you may be asked if you have tried to "mitigate your damages".

Best of luck.

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