When a tenant walks in and says that they're having trouble with someone else named on their lease (a roommate, an ex, an ex-friend), most of the housing counselors here at the TRC will hold their breath, because they're about to tell that person something they won't want to hear. Me, I like a good story, and most of these have great stories, but either way, it doesn't usually end up so that we get to tell the client good news. And the reason for that bad news is joint and several liability.
Joint and several liability is a confusingly legal term that means that all the tenants on a lease (on one lease, not separate leases) and each of the tenants on the lease, can be held responsible for all money damages. For example: Housemate A punches a hole in the wall and then leaves for an overseas job. Housemate B, with the major that didn't translate into international job opportunities, stays put. Housemate B is easier to find when the bill for the damages come due. Housemate B ends up on the hook.
Now, this isn't to say that tenants don't have any recourse when they end up holding the bill for the irresponsibility of their co-tenants. Tenants can hold one another responsible, which is even easier if they have some kind of written understanding of who owed what, or some kind of paper trail showing who caused the damages. It's just not the landlord's job to work out who was causing the problems, though the landlord can try if he/she feels like it. Some tips below for those that might find themselves in this situation.
- Only live with someone who you think will act in good faith. If you have a good friend who is super flaky and also really accident-prone, your friendship might survive longer if you don't choose to live together.
- Make a roommate agreement while things are still cheerful! While things feel happy and theoretical, put together a list of who is going to pay what, who will do what, and all the particulars of your individual situation. When (if?) things get uncomfortable, you'll wish you had one.
- If you are unsafe, there are ways to get help! If you are living with someone who threatened you or hurt you, you might be able to use the Safe Housing Act and get out of the lease, or remove the scary person. Please contact us or a domestic abuse agency in your area to find out more about your rights.
- If you end up with the bill for someone else's actions, you can sue them in small claims court. You can only sue for actual money owed (no suing for pain and suffering in small claims). Your best bet for being successful in small claims is to have a paper trail.*
- If you are cosigning for someone who is going to be on the lease with another tenant (or more than one other tenants), you could end up footing the bill for someone you don't know. Cosigning is taking responsibility for the WHOLE lease, not just the portion involving the person that you care about.
- You'll have more capacity to hold individual tenants responsible if you get things in writing! Encourage tenants to make a roommate agreement that says which tenants will owe what and why, and clearly defines which tenant obligations each cosigner is responsible for. (Better yet - make it a requirement before you cosign). It's not the landlord's job to enforce this, but it will more easily allow you to sue the tenants who haven't upheld their financial obligations in small claims court.
- It's a great idea for you to provide roommate agreements to your tenants as they are signing the lease. You won't be required to enforce it if you provide it, but it can help ease some of the stress of having tenants with disagreements.
- You really can hold any combination of tenants responsible. You could evict or sue one, all, or a group therein.
- A lot of tenants that we see really don't understand joint and several liability. It's a great thing to explain while you're going over the lease.
- Make sure you understand the Safe Housing Act! If a tenant comes to you with a restraining order/ criminal complaint/ condition of release for domestic abuse/sexual assault/stalking, against an offending tenant in their unit or complex, they can be released from their lease, or force the offending tenant out. For questions, you can contact us or a domestic abuse agency in your area.
And for the story junkies, like me, a few real-life examples:
- A woman came in this morning, who had been caring for her elderly father in exchange for housing. Her father passed away. She and her dad were both on the lease, and even though there's a law that says that leases end for folks that die (after 60 days, or the end of the lease, whichever is first), if there's another tenant named on the lease, the contract is still valid for the person left behind. Since both daughter and father were named equally on the lease (there weren't separate contracts), the tenant is now responsible for the whole rent, even though she hadn't previously been paying anything.
- Two tenants came in earlier this month, who were longtime friends. They had found an apartment they liked, but needed a third person to share it with them. The apartment manager recommended someone, but that person turned out to be an irresponsible housemate - rarely paying rent or utilities. The clients thought that the manager should be responsible for the actions of that third person (she recommended him!) but since they were all named as tenants on the lease, they had to work out the amount owed amongst themselves.
- A landlord came in recently because he'd be receiving a bunch of noise complaints about an apartment with three tenants. The landlord was pretty sure who was causing all the problems, and so we told him that, since they were all named as tenants on the contract that they had, that the landlord could issue an eviction notice just to that one problem tenant.
* Hi! Did you know that we are not attorneys here at the TRC? And this isn't legal advice, either. If what we've written here doesn't sound right to you, talk about it with someone you trust. For help finding an attorney, check out our attorney referral list.
Edit on 7/21/14: In the second paragraph, the phrase was added: “and each of the tenants on the lease,” to clarify that tenants can be held responsible as a group (“jointly”) and individually (“severally”) for all of the terms of the lease. We made the change because a lovely reader wrote to us requesting some clarification about this post, especially concerning what happens when one person is held responsible on a lease where there are other tenants, too.
Joint and several liability can indeed be confusing, and it’s important for tenants to realize that when they are signing a lease, they alone can be held responsible for the errors of another tenant on that same lease. Now, there are things that a wrongly accused tenant can do about it - the wrongly accused roommate can pull the problem roommate into the legal action, but the wrongly accused tenant will probably remain named on the suit. A roommate agreement will give the wrongly accused tenant more leeway to independently hold the problematic tenant responsible, perhaps by suing them later on for money damages that occurred as a result of the problem tenant’s actions. It is not, however, the landlord’s legal responsibility to make that distinction. Tenants signing a lease where they are “jointly and severally liable” give that permission away.