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?

UPDATED: Sep 30, 2022

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 6 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.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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