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Cotenant (Roommate) Lease and Legal Situations

Regardless of how they choose to divvy up the living quarters or maintenance responsibilities among themselves, cotenants (commonly known as roommates) have an equal responsibility to you to pay the rent and maintain the property. To be the most legally protected, your lease agreement should clearly state that each tenant is jointly and severally liable for the payment of rent and all other terms of the lease agreement. Basically, this means that you can treat them as a group or as individuals as the situation requires. For example, if one does not pay their share of the rent, all of the others are responsible for the missing amount. Similarly, if one breaks a term of the lease, then you could evict them all as a group or just the offending tenant.

If the cotenants find themselves in the middle of a conflict over some aspect of the property – arguing over who agreed to shovel the snow on the sidewalk, or who wants the bedroom attached to the bathroom, or if a couple decides to get a divorce and both want the other to leave, etc. – be sure to stay out of it! You do not want to be caught up in their battle and possibly find yourself somehow the loser.

The best thing for you to do is to advise them to seek out someone else to act as a mediator to help resolve the issue and do not take any particular side in the matter. Chances are you may even have a local housing agency that offers free or low cost mediation services for roommates. Point your tenants in their direction and hopefully an amicable resolution can be made which does not affect you. Again, do not attempt to mediate for them, no matter how well intentioned your offer to help might be.

A special note of caution – The one time when you should get involved in a dispute is when you suspect that violence has (or may) occur. In this case, call the police immediately. There are a number of reasons why you need to do this from moral obligations to protecting your property to saving yourself from a legal liability suit for not protecting a tenant. But whatever your particular motivation, just do it!

What happens when a cotenant decides to leave?

If a subtenant or an assignee is offered as a replacement for the leaving cotenant, you will need to decide if you want to accept that person’s tenancy. The next sections of this chapter – which deals with subletting and assigning – will help you with making this decision. If a subtenant or assignee is not offered as a replacement, you will simply need to deal with the security deposit and whether or not the remaining tenant(s) can afford the additional rent that was the cotenant’s share.

Security Deposits

You do not have to return a cotenant’s portion of the security deposit until the lease term has ended – even if they decide to move out early. However, as you’ll see, it may not be in your best interest to hold on to it, so you should consider the other options that you have in this situation. Not to mention that they are probably going to want it back, so they can move into their new place with it and you want to stay on good terms with everyone involved – because you never know where a good referral might come from! You basically have three options in this situation:

1. Keep the leaving tenant’s portion of the security deposit until the end of the lease. Period. End of story, it’s your right. At least for you – the leaving tenant probably won’t be too happy about having no control over any damage done to the property after they leave that they will be charged for.

2. See if the remaining tenant(s) can come up with the leaving tenant’s portion of the security deposit. If they are willing to come up with the extra amount, you can return the leaving tenant’s portion AFTER the check from the other tenant(s) has cleared your bank. However, the remaining tenant(s) should not be held solely responsible for any damages caused while the leaving tenant lived there. If you are going to return their portion of the security deposit, you should arrange (with all of the tenants) an interim walk through inspection of the property. Any damage found can be noted, signed off on by all parties, and proportioned by tenant, however the situation dictates. Then, additional damage found at the end of the lease can be deducted from the security deposit without any counter-arguments or sob stories from the remaining tenant(s) about how the damage was caused by the tenant who left early.

3. If, at any time, a new cotenant is found for the remainder of the lease, you can accept a portion of the security deposit from them and refund that portion to either the tenant who left early or the remaining tenant(s), depending on your situation. Again, you should return the amount only after the check from the new cotenant has cleared your bank. As explained in Option #2 above, the new cotenant will not want to be held responsible for any damage caused before their arrival, so you should arrange an interim inspection of the property – note any damage, and have all parties sign off on the condition of the property at the time of the new tenant’s move-in.

Legally speaking, the tenant who is leaving will still be responsible for paying their share of the rent. Practically speaking, you may not be able to find them, let alone get them to actually pay it. While the remaining tenant(s) will be responsible for the entire rent as previously discussed, it may not be feasible for them to cover the additional amount every month. If they cannot afford the increase in rent and there is no new cotenant, subtenant or assignee suggested, you will need to try to work out an amicable end to the lease.

Perhaps they can afford the extra amount for one month while they look for a new place to live and you can simultaneously look for new tenants. Or maybe you are willing to let them stay for one more month without the one tenant’s share of the rent with the expectation that the security deposit will be able to cover the rent loss because you’ve seen how immaculately the remaining tenant(s) has been maintaining the property. That way, you have at least some of your rental income still flowing while seeking a new tenant. Whatever you do is your decision to make, based on the situation you have at hand. Only you can figure out what you will be comfortable with doing considering all of the factors such as how much time is left on the lease and what your rental market is like.

An important note to consider – When a cotenant leaves, unless you are going to still be receiving a portion of the rent from them, you should draft and have them sign a lease termination agreement. This will allow you the option to accept another cotenant if the remaining tenant(s) finds one in the future, as well as prevents the tenant who left from returning and reasserting their right to stay at the property.