Changing Lease Terms due to Tenant Divorce in CA

10 Replies

  Hi all.  I'm looking for thoughts and advice on a situation.  My tenants in California have filed for divorce.  The original plan that they asked for was to end their lease early, about 6 months.  He moved out to an apartment after she filed for the divorce and she wanted to find something with cheaper rent in the same town to keep the children in the same schools.  I had no real problem with her leaving early, especially if she though she would have a hard time making the rent.   The rental market in the area is good, and new tenants shouldn't have been hard to find.  

  Today we contacted her to start arranging good times for some prospective new tenants to see the house.  Her reply was that she met with her lawyer today and she wanted to keep the current lease and was going to stay in the house because moving the children mid-year was not a good idea.  

  So having her stay means that I don't have to turn over tenants until the original lease end - Great ...maybe.

Her original thought that she need a cheaper rental was, in my opinion, changed by meeting with her lawyer.  I figure that the lawyer is going to go after the husband to make sure that the wife and children can stay in the house.  There's probably not a ton of divorce lawyers in the forums, does this sound like something that might happen?

She wants to "change the lease" to remove his name from the lease.  Everything I've read about changing the terms of a lease has to do with raising the rent, or no longer allowing pets, etc. and hasn't really helped giving me a real sense of what to do on this situation.  If both the husband and wife agree to remove him from the lease then I figure it shouldn't be a big deal to just change the lease.  I should probably get it in writing from the husband that he is OK with changing the terms, right? 

  I'm still concerned about how she is paying for the rent when she originally had concerns about it.  I do plan to ask her in my follow up but I wanted to post here and get any thoughts before I got deep into the conversation with her.  That said, she/they have paid on time, every month for 18 months, and apparently he moved out several months ago, so there is must be some arrangement between them that is working currently.

 Thanks in advance for any ideas and your thoughts.  Isn't this fun?  

I would resist taking the husband off the lease, especially if he isn't requesting it.  As long as they are both on the lease they are both responsible for rent.  If you remove him, you cannot go after him for a judgement or collections.  We require written notice from the person wanting off the lease.  I'd tell her you'll consider changing it when the lease period is over base don her payment track record between now and then.

I’ve had that happen to me s few times and what I have done is I write an addendum to the lease stating who is leaving and who is staying in the apartment signed by both parties. I also require before I allow that to happen is that the person staying show proof of being able to afford in there own. On own occasion the wife stayed and husband moved out. She asked for her cousin to move in. We had her fill out an application and was screened like any other applicant before we allowed her to move in. 

This is pretty simple as long as you get it in writing and are clear about the terms.  I have a form that includes:

1. Name of departing tenant and their move-out date

2. Departing tenant signs a statement that they have no responsibilities regarding the property but they also have no rights. If they want half the deposit back, that's between them and the remaining tenant.

3. Remaining tenant must take full responsibility for the condition of the home, payment of rent, and other terms of the lease. They can't move out six months later and blame property damage on the ex-spouse.

This document should clearly explain what happens with each party and then it MUST be signed by all parties to ensure it is binding.

I’d ask her to RE-apply for the lease, do the background on her (a lot can change in 6 months). It’s a business, she will understand, if not move on. She has to show she can afford the rent and have a clean background.

There is no reason to take him off the lease and very good reasons to keep him on the lease. Keeping him on the lease makes both of them legally responsible for the rent. In the event she can not pay you can still go after him for the money.

Do nothing, refuse to remove him from the lease since she is a high risk tenant by herself.

Let the lease run it's term then decide if you are keeping her or not as a single tenant.

Bottom line is she is going to have a difficult time and you would be better off getting a new tenant.

Thanks everyone for your feedback.  After your advice and some other reading and consulting, i'm going to go the route of not changing the lease.  I'm sure that she'll be less than happy, but I think I'm best served at this point by sticking with the original contract.  I don't mean that to sound cold, but for me this needs to be a business decision, not a situation where I should expose myself to extra risk to be sympathetic.  

  Some other ideas that I read that reinforce your comments are, that they are GETTING a divorce, they don't HAVE a divorce, so right now their problem is not my problem.  When their divorce becomes final, then I'll flex to support whatever the court determines, if that requires me to remove him from the lease, etc.  

  In the meantime, with her potential issues making rent, it definitely seems best to keep him on the lease.  

Thanks again, and I'll update this as things progress.  

I'm a California real estate attorney and real estate broker.  I have not done divorces directly but have plenty of experience with the effects of divorce on real estate holdings and obligations.  I would tend to agree with your conclusion to not change the lease at this point.  There is a world of difference between "getting a divorce" and having a final divorce judgment with specific allocation of obligations.  I would recommend that you stay in touch with the tenants throughout the divorce proceeding and negotiate the best terms for your self regarding their lease obligations, which can remain in effect in spite of the divorce proceeding.  As long as both husband and wife remain on the lease, both are bound to the terms of the lease, regardless of their marital status or whether one is living there.  Plus, depending on where they are in the divorce process, which generally takes six months minimum, the lease may be concluded by the time of the final divorce judgment.

Just wanted to update this discussion since it remains interesting.  Really nothing happened with the original request to remove him from the lease.  She didn't pursue the conversation further and today I got an update from the ex-husband. It sounds like the divorce is final now, and he's moving out of state.  He's military which adds an interesting twist because he has permanent change of station orders out of CA in May. 

  He wants me to modify the current lease to remove him from it as of May 1.  That's apparently his last day at his duty station here in CA.  The current lease is up 30 June anyway, and from the earlier conversation I was going to have her apply for the lease on her own. 

  Since he has PCS orders, he can break the lease under the Servicemembers Civil Relief Act , though I'm pretty sure that it's still a 30 day timeline that's required.  Regardless, it lets them break the lease but it doesn't let them change the lease.  

  So I'm thinking that she needs to apply and be approved and sign a new lease prior to the date that he wants to terminate the current lease.    Assuming that she has the verifiable income then this is easy, if she doesn't, I'm pretty sure she's going to be really upset.  

  They didn't share any details on the divorce settlement and if there were any provisions pertaining to the lease, so I don't know if there are any details on that front that matter.  

  Thoughts and opinions are welcome, but I mostly wanted to get this out there to share the crazy confluence of special circumstances

I would terminate the lease based on the terms of the Servicemember Civil relief Act. Then allow the wife to apply for a new lease.

Thanks for sharing this is definitely an interesting situation.

Hi all.  Update time and I just wanted to post the latest on the situation.  It stinks.  When they wanted to terminate on the SCRA, we found out that the wife has no employment history and no verifiable income other than the child support.   We did not terminate the lease, and both remained on it.   

  Here's where it continues to go downhill faster.  He moved in early May on new orders that took him to Florida but she is still in the house with the kids and all their furniture, etc.  Two weeks ago she contacted us to tell a story about how she is stuck in the house and can't move because he used up their entire move entitlement and she can't afford a move.  She is working with the Navy to get move set up through a non-standard program.  She keeps insisting that she's just going to pay rent for July and would like to stay.  The lease ends 30 June.  

  We already have tenants set up for 1 Aug, and obviously need time to turn the place over.  They've been in for two years, and it needs some work.  Through all the communication with her and her Navy assigned advocate, we have no faith that she is going to move until the Navy sets up this special move and could care less  when that is.  

  She has a very entitled attitude about the whole thing, and I've got this sinking feeling that I'm going to have to tell the new tenants that there is a good chance the house won't be ready for them, and I'm probably going to have to evict her because there is no way the move is going to be set up in 2 weeks, and I highly doubt it will even be done in July.  

Thanks for listening, I figured that I would write this to continue to record the story through whatever conclusion it takes.  

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