Is it illegal to sublease an apartment and receive rent but not pay that rent to the apartment complex while the apartment is in an eviction?

I have recently got myself in a bind by the above question. I had an apartment that I began subletting. The new tenants were doing illegal things at the apartment and the complex was made aware of this. The complex then informed me they were going to proceed with an eviction. I continued to collect rent from the tenants but did not pay that rent to the complex because I knew the apartment was going through an eviction. I informed the tenants about the eviction but they continued to pay. The local police department is saying I obtained property by false pretense. Is this true or is this a civil matter?

Asked on March 12, 2016 under Real Estate Law, North Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It's only false pretense if you lied to the tenants about the situation: for example, if leased to them knowing you were about to be evicted, without telling them that. But if you were transparent about the situation and they voluntarily chose to pay you in full knowledge of what you could and could not give them, that it their choice and it is not illegal. Or rather, that is the law; practically, if the tenants later try to claim that you did lie to them and either press charges or sue you for the money, there is a better than even chance they will win, because unless you have written documentation of what you told them, the authorities and/or a court will likely believe the tenants, since it is more inherently plausible that the landlord (you, in this context, lied) then that the tenants continued to pay for space they would be evicted from.
As for between you and your landlord: you are not required to turn the money from the sublet over to the landlord. The landlord may be able to sue you for unpaid rent if you owe him something and did not pay, but that's a different matter.


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