If you want to add a roommate, most landlords will insist that the new roommate become a cotenant rather than a subtenant. Why? Unlike subtenants, cotenants are subject to joint and several liability, which allows the landlord to demand the entire rent from the cotenant as well as you. If it’s up to you, on the other hand, in some situations you may want the newcomer to be a subtenant who rents from you and has no direct relationship with the landlord. For example, if you want to have the power to evict your new roommate, you’ll need to set up a subtenancy,or take in a roomer. Keep in mind that whether your roommate is a subtenant or a cotenant, you’ll need the consent of the landlord.
Obviously, you won’t choose to live with someone who is financially unstable or inconsiderate. But even if you’re satisfied with a prospective roommate’s resume, your landlord might not be. There are a number of reasons a landlord might object to your chosen roommate, even if you’ve chosen someone who seems responsible and trustworthy. To increase your chances of an official okay, consider the following issues:
If your intended roommate passes your landlord’s credit and background checks, the landlord will probably ask both of you to sign a new lease or written month-to-month agreement. From your landlord’s point of view, this is far more than a formality, since 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 your new roommate shares the same legal responsibilities that you do.
If you add a roommate and sign a new rental agreement, technically speaking you’re beginning a new tenancy, not changing an existing one. Consequently, if the landlord wants to increase the rent, the normal notice requirements for month-to-month tenancies (typically 30 days) don’t apply and the rent may be increased as soon as you sign the new lease or rental agreement. The landlord may give you no notice other than presenting you with the new agreement containing the new rent provision. In that situation, the landlord can set the rent at whatever level he chooses (rent control areas excepted).
If you’re adding a roommate to a lease, the same holds: Your landlord may increase the rent on the spot, since you’re now beginning a new tenancy.
If you sign a new rental document, all bets are off, including the amount of the security deposit. If your state regulates the deposit in multiples of monthly rent, this is the only check on your landlord’s ability to increase the deposit. Incidentally, the landlord can also change other lease clauses, such as those dealing with pets or late fees.
What if you’re reluctant to share your entire home with a cotenant whom you have no power to evict, but want someone to share costs? The answer may be to take in a roomer as a subtenant.
When you take in a subtenant, you’re that person’s landlord. The main advantage of a subtenancy over a cotenancy is that it gives you the legal right to terminate the roomer’s tenancy if things don’t work out as planned. By contrast, you can’t end the tenancy of a roommate who is a full-fledged cotenant—only your landlord can do this.
We suggest that you sign a month-to-month rental agreement with any subtenant, specifying rent and any restrictions on his use of your home. And, although your roomer doesn’t sign the rental document you have with your landlord, he must comply with its rules as well as yours. Think of the arrangement as a set of nesting dolls: You live within your landlord’s rules and regulations, and your subtenant lives within yours and the landlord’s. So if your landlord prohibits using the pool after 10 p.m., you can’t promise your roomer the joy of midnight swims. And, most important, if your roomer breaks your landlord’s rules, the landlord may evict you to get rid of the roomer.
Don’t get too enthusiastic about bringing someone in as a roomer until you get your landlord’s approval. And be forewarned that many “landlords” in your position have problems getting a roomer to leave. You’ll probably have to follow the same legal procedures all landlords use to terminate a tenancy.