If one of you is renting a house or apartment, and your partner plans to move in, it's essential that you are clear as to whether you are both renting the place as cotenants, or whether you are the only tenant and your partner is a subtenant (someone who rents from the you, the tenant). When you and your partner are both cotenants, you have legal obligations vis-a-vis the landlord and each other that are different from the legal obligations of a tenant and a subtenant. The main difference between the cotenant and tenant-subtenant arrangement lies in the tenant’s ability to evict a subtenant. If your partner is a cotenant, you cannot evict him or her; if your partner is a subtenant and you are the tenant, however, you will have eviction powers.
Often, you won’t have the right to decide whether your partner will be a cotenant or a subtenant: Your landlord will want all roommates to sign the lease or rental agreement and become tenants.
If you want to have your partner move into your apartment or rental house, here’s our advice:
Letter Requesting Permission to Add a Roommate
1500 Peanut Street, #4
June 2, 20xx
10 Jones Street
Dear Smith Realty:
I live at the above address and regularly pay rent to your office. I would like to add a second person, Julie Renoir , to my lease beginning July 1, 20xx. She will be glad to complete a rental application and provide a recent copy of her credit report and references.
I will call you soon to discuss this further. Thank you very much for considering this request. Very truly yours,
Renting a place together and signing the same lease is the most common way that two people become cotenants. But you and your partner can become cotenants in another way, too. If you have a place and your landlord approves of an additional occupant, your partner can sign your original lease and become a cotenant. And suppose your partner moves into your rental and is openly acknowledged as a resident by the landlord—the landlord knows she’s there, accepts rent from her, responds to her requests for repairs, and in every other respect treats her just like he treats you. In many states, this behavior on the part of the landlord will make your partner a cotenant, just as if she had formally signed a lease. This means that you’re each on the hook for all rent and all damages to the rental—it doesn’t matter how you split the rent or who caused the damage. You are each independently liable to the landlord for all of the rent and for complying with all terms of the lease or rental agreement. (This is known as the “joint and several” liability rule.) The landlord can hold all cotenants responsible for the negative actions of just one, and terminate both of your tenancies with the appropriate notice. For example, you can be evicted if your partner seriously damages the property, moves in a dog (contrary to the landlord’s no-pets rule), or otherwise violates the lease or rental agreement.
If your landlord approves your request to add a roommate, he or she will probably ask both you and your partner to sign a new lease or month-to-month rental agreement. From your landlord’s point of view, this is far more than a formality, as it makes the new arrival a cotenant who is 100% liable to pay rent and make good on any damage. It’s also desirable from your perspective, because it makes it completely clear that you and your partner share the same legal rights and responsibilities.
A landlord who agrees to an additional cotenant may ask for a rent increase on the theory that more people means more wear and tear. By signing a new lease or rental agreement that creates a cotenancy, you are, in effect, starting a new tenancy, so the landlord can increase rent immediately, rather than give you the usual 30 days’ notice (for a month-to-month rental agreement) or wait until the lease ends.
Unless your rental unit is covered by rent control—or if the landlord is using a big rent increase as a not-so-subtle way to discriminate against you for an illegal reason—your landlord can ask for as much extra money as the market will bear.
But just because your landlord asks for a big rent increase doesn’t mean you have to say yes. One good approach is to counteroffer a lower amount. Let the landlord know that you may rethink adding a roommate, or even move out yourself, if you can’t reach an acceptable compromise.
The landlord also has the legal right to change other conditions of your tenancy when you add a cotenant and sign a new agreement. One change that is particularly likely is an increase in the security deposit. However, this is one area where the sky is not the limit, because many states limit the amount of security deposits. Usually the limit is a multiple of the monthly rent. Keep in mind that if the deposit is already at the maximum, but the landlord raises the rent for the new occupant, the maximum security deposit goes up, too.
People sharing a rental unit usually have certain expectations of each other as roommates. We recommend that you write them down. After all, you sign an agreement with a landlord almost as a matter of course—why not do the same with each other? It’s a good way to make sure you’re both clear as to your responsibilities to each other as tenants—who pays what portion of the rent and utilities, who gets the place if you split up, and the like.
If your relationship ends down the line, memories may have blurred and questions such as “Whose apartment is this, anyway?” may turn into serious disputes. To avoid later problems, write down your understanding when you first move in together. A sample Agreement Covering Rented Living Space is included here.
This agreement can stand alone or be incorporated into a more comprehensive living together contract. You can edit this agreement—for example, you can include paragraphs about living expenses, cleaning responsibilities, or anything else that is important to you.
Agreement Covering Rented Living Space
Julie Renoir Clem Lawrence agree that:
1. We will jointly rent Apartment # 4 at 1500 Peanut St., Dallas, Texas We have both signed a month-to-month rental agreement with the landlord, Reuben Shaw , and have each paid $ 750 towards the security deposit of $ 1,500 .
2. Each of us will pay one-half of the rent and one-half of the utilities, including the basic monthly telephone, cable, and DSL charges. We will each keep track of and pay for our own long distance calls. Rent will be paid on the first of each month and utilities within ten days of when the bill is received. Utilities will be in the name of Clem Lawrence .
3. If either of us wants to move out, the one moving will give the other and the landlord 30 days’ written notice and will pay his/her share of the rent for the entire 30-day period even if he/she moves out sooner.
4. No third person will be invited to stay in the apartment without the agreement of both.
5. If one of us no longer wishes to live with the other, but both want to keep the apartment, the following will occur [check one]:
Julie has first rights to stay in the apartment and Clem will move out.
We will ask a third person to flip a coin to see who gets to stay.
The person who needs the apartment most will retain it. Need will be determined by a third party whom we agree is objective, within two weeks of the date when one informs the other that he/she wishes to separate. In making this decision, the third party will consider each person’s relative financial condition, proximity to work, the needs of any minor children, and [list any other important factors] .
The person who is to leave will do so within two weeks of when that decision is made, and will have an additional ten days to pay his/her obligations for rent, utilities, and any damage to the apartment.
6. Any dispute arising out of this agreement will be mediated by a third person mutually acceptable to both of us. The mediator’s role will be to help us arrive at a solution, not to impose one on us. If good faith efforts to arrive at our own solution with the help of a mediator prove to be fruitless, either of us may make a written request to the other that the dispute be arbitrated. If such a request is made, our dispute will be submitted to arbitration under the rules of the American Arbitration Association, and one arbitrator will hear our dispute. The decision of the arbitrator will be binding on us and will be enforceable in any court that has jurisdiction over the controversy. By agreeing to arbitration, we each agree to give up the right to a jury trial.
7. Additional agreements: ______________________________________.
8. This agreement represents our complete understanding regarding our living together and replaces any prior agreements, written or oral. It can be amended, but only in writing, and any amendments must be signed by both of us.
9. If a court finds any portion of this contract to be illegal or otherwise unenforceable, the remainder of the contract is still in full force and effect.
The Tenants section on this site includes many useful articles on renting a place with others and a sample roommate agreement. It also covers renters’ rights when it comes to security deposits, moving out, and other issues. Also, the article Who Gets the Apartment When an Unmarried Couple Splits Up? discusses the impact of a separation on your rental housing.