When two or more people sign the same rental agreement or lease—or enter into the same oral rental agreement—they are cotenants and share the same legal rights and responsibilities. This legal principle, known as “joint and several liability,” has enormous implications for cotenants.
Keep in mind that here we are talking about housemates who are cotenants, not tenant and subtenant. This is an important distinction. A tenant and her subtenant (for example, someone who has sublet an apartment from you and has not signed the lease or rental agreement) do not share the same rights and responsibilities with respect to each other or to the landlord. See Legal Issues With Roommates for the legal definitions.
Joint and Several Liability: Roommates Are in This Together
Joint and several liability is the legal version of the slogan of the Three Musketeers: “One for all and all for one.” Here’s what it means to tenants:
- One for all. The landlord can demand the entire rent from just one cotenant. The rent-sharing understanding you have with your roommates is immaterial to the landlord. In other words, even if you pay $400 for your tiny room and your roommate pays $800 for a master suite, you’ll be liable for the full $1,200 rent if for some reason your roommate flakes out.
- All for one. Even innocent cotenants will suffer the consequences of one cotenant’s misdeeds. Unfair as it seems, the raucous party that your roommate threw when you were out of town can result in a termination notice directed to you, too.
It’s that simple. So how can you avoid being tarred by your roommate’s screw-ups? The best answer, of course, is to choose your housemates carefully. Even solid friendships will benefit from thinking ahead to possible areas of friction and planning ways to avoid problems. To be blunt: When it comes to paying rent and making good on damage, you are your cotenant's guarantor--if she flakes, you pay.
But joint liability doesn't mean that you can evict a cotenant. Only landlords can do this. See Getting Rid of a Roommate for more on the subject.
This means that cotenants cannot force each other out. If your roommate becomes insufferable, you’ll have to work it out between the two of you unless the roommate’s behavior is also a violation of a lease or rental agreement clause (for example, illegal drug use). Although a violation of this nature would justify the termination of both your tenancies (joint and several liability!), you might get lucky if your landlord pities you and lets you stay.
How (and Why) to Prepare a Roommate Agreement
Roommates make lots of informal agreements about splitting rent, sharing chores, and choosing bedrooms. It’s important to understand that such agreements do not affect the joint and several liability of cotenants to the landlord. Just because you and your cotenants agreed to share cleaning and maintenance duties doesn’t change the fact that each one of you is liable for any damage done to the apartment. And just as your landlord isn’t bound by any agreements between roommates, your landlord cannot enforce them, either. If one roommate breaks an agreement made with the rest of the cotenants to pay one-third the rent, don’t bother asking your landlord to force the roommate to pay up.
Since the arrangements between you and your roommates will have a huge effect on your day-to-day life, you should take them seriously. Before you move in, sit down with your roommates and discuss the major issues that are likely to come up, including:
- Rent. What is everyone’s share? Who will write the rent check if the landlord will accept only one check?
- Space. Who will occupy which bedrooms?
- Household chores. Who’s responsible for cleaning, and on what schedule?
- Food sharing. Will you be sharing food? How about shopping and cooking responsibilities? How will you split the costs and work?
- Noise. When should stereos be turned off or down low?
- Overnight guests. Is it okay for boyfriends/girlfriends to stay over? How often?
- Moving out. If one of you decides to move, how much notice must be given to the rest of you? Must the departing tenant find an acceptable substitute?
- Spats. How will you handle disagreements among yourselves about your living arrangement? (Don’t kid yourself—they will come up.) If you want a roommate to leave, how can it be done fairly?
It’s best to put your understandings in writing and ask every roommate to sign it. Oral agreements are too easily forgotten or misinterpreted after the fact. Click here to see a Sample Roommate Agreement.Sample Roommate Agreement
Catherine Davis, Kelli Halister, and Stacy Fremont are roommates at 3901 Bay, #123, Collegetown, CA, under a $1,500/month, year-long lease that begins on July 1, 20xx, and expires on July 1, 20xx. They have all signed the lease with the landlord, Will Skruoya; and have each paid $500 toward the security deposit of $1,500. Catherine, Kelli, and Stacy agree as follows:
1. Rent. Since Will has agreed to accept three separate checks; each will pay $500 on or before the first day of each month.
2. Food. Each roommate is responsible for her own food.
3. Cleaning. Each will clean her own room. Cleaning the bathroom and kitchen (appliances, counters, vacuuming, and mopping) and the living room (vacuuming and dusting) will be done once a week on a rotating basis.
4. Utilities. Everyone will pay an equal share of the electricity, gas, and cable bills. Catherine will arrange for these services, receive each monthly bill, and show it to the others within two days of receiving it. Kelli and Stacy will give Catherine their checks, made out to the electric company, within one day. Catherine will make the payments.
5. Guests. Each roommate agrees to have no more than one overnight guest at a time, except in extraordinary situations; and no more than four guests overnight in one month.
6. Parties. Each roommate agrees that there will be no social gatherings of more than three guests at which alcohol is served on school nights. Parties on Saturday or Sunday evenings will be reasonably managed by the hostess, who will clean up afterwards.
7. Exam Periods. During exams, no roommate will have overnight guests or parties.
8. Violations of This Agreement. The roommates agree that repeated and serious violations of this agreement will be grounds for any two roommates to ask the other to leave. If a roommate is asked to leave, she will do so within one month and will forfeit any prepaid rent.
9. Leaving Before the Lease Ends. If a roommate wants to leave before the lease ends, she will give as much notice as possible (and not less than one month) and diligently try to find a replacement tenant who is acceptable to the remaining roommates and the landlord.
10. Security Deposits. The roommate who leaves early (voluntarily or involuntarily) will get her share of the security deposit returned, minus rent, costs of repairs, replacement, and cleaning attributable to the departing tenant, when and if an acceptable new roommate signs the lease and contributes his/her share to the security deposit. If an acceptable replacement cannot be found, the departing roommate will not receive any portion of her share of the deposit until the tenancy of the remaining roommates is over and the deposit is refunded by the landlord.
11. Dispute Resolution. If a dispute arises concerning this Agreement or any aspect of the shared living situation, the roommates will ask the University Housing Office Mediation Service for assistance before they terminate the cotenancy or begin a lawsuit. This will involve all three roommates sitting down with the mediator in good faith to try to resolve the problems.
_________________________ Catherine Davis
_________________________ Kelli Halister
_________________________ Stacy Fremont