People who share a house or apartment, i.e., roommates, can end up in conflicts because of poor communication or differing expectations. Many of these conflicts might be avoided by having a written roommate rental agreement, which might also be considered a sub-tenancy agreement. The agreement should specify the expectations of all roommates at the beginning of their shared tenancy.
Ideally, the agreement should be in writing, signed by all roommates, but this is not strictly necessary. Among the things the agreement might address are the following:
- Whether one tenant only has signed the lease with the landlord and what the legal implications of this are;
- Who pays rent, to whom, how much, and when;
- Who pays the utilities, e.g., heating, electrical, water, cable, telephone, wifi, etc., to whom and how;
- Who pays the rent to the landlord;
- What are shared chores, and who performs them. For example, an issue would be cleaning of shared space, how often it should be cleaned, how it should be cleaned, who does it, and when;
- Whether food will be bought and shared or not. If not, what are the expectations for the use of the kitchen;
- The house rules regarding pets, smoking, drinking, drug use, noise, and guests;
- The amount and manner of notice that is required for a roommate to move out;
- The consequences of failing to give notice as required;
- How disputes should be managed;
- Any other issues that are important to the roommates.
A roommate agreement should reference the lease for the unit in which the roommates live, whether all the roommates have signed the lease or not. Nothing in the roommate agreement should go against the lease. If a tenant puts something in their roommate or sub-tenancy agreement that violates a lease term, it would not be valid.
What Is the Legal Effect of a Roommate Rental Agreement?
It is important to acknowledge that a roommate agreement is not binding on the landlord. The landlord is only obligated by the lease for the unit as a whole unless all the roommates have a lease with the landlord. The landlord is not going to enforce a roommate agreement, and neither would a court of law necessarily enforce all provisions of a roommate rental agreement.
Of course, a court is not going to order a person’s roommate to do the dishes the roommate left in the kitchen sink overnight. However, some terms of a roommate rental agreement might be enforceable in a court of law. This issue is discussed at length below. It might be wise to have two agreements if necessary, one for important provisions concerning payment of rent, utilities, and the consequences of failure to pay and another for issues such as use of the kitchen, cleaning the bathrooms, and the like.
Other basic provisions of landlord-tenant law are important in roommate situations. For example, when a person is a tenant in a landlord-tenant rental agreement, the tenant is solely responsible for fulfilling the terms of the lease. Of course, the most important of these terms is the obligation to pay the rent when it is due.
If a tenant sublets rooms in the rental unit and the subtenant does something that violates the rental agreement, it has a negative effect on the tenant. For example, if the subtenant does not pay their share of the rent to the tenant, the tenant remains fully liable for paying the entire rent.
The failure of the subtenant to pay their share of the rent does not excuse the tenant from paying the whole amount in order to maintain the lease. With that said, this is true regardless of whether or not the tenant and the subtenant have a written roommate rental agreement.
Under landlord-tenant laws, many lease agreements have a clause regarding joint and several liability. This clause means that if one of a group of roommates does not perform as promised in the lease agreement, all of the roommates are responsible for the deficiency. Of course, this would only apply if all of the roommates have signed the lease.
If only one of a group of roommates is the tenant, and the tenant fails to pay the rent, the other roommates had better pay the full amount, or the landlord can start eviction proceedings against the tenant. If the tenant were to be evicted, all of the roommates could lose the tenancy in an eviction proceeding and have to depart. Again, this is true as a practical matter, whether the roommates have a legally enforceable written roommate rental agreement or not.
Some landlords may offer individual leases to each roommate in a shared rental situation. Rental units in college towns near the campus may work this way. In this case, each tenant rents a room and the use of common areas directly from the landlord and is answerable to the landlord for violations of their lease. In this arrangement, the landlord can evict one tenant without evicting all of them. The roommates cannot evict each other.
Who Is Considered a Roommate?
A roommate is a person who is not related to another person but shares a common living space with the person. Definitions may vary by state and jurisdiction.
What Is Included in the Roommate Agreement?
Some of the issues that a roommate rental agreement, or sublet agreement, should include are noted above. The most important provisions would be those regarding who pays for what, how and when, and what can happen if payment is not made, i.e., lease termination and eviction. The agreement should be clear about what behavior on the part of the subtenant can result in their being asked to move out.
Of course, if each roommate has a separate lease with the landlord, one roommate cannot evict the other. They might still have a roommate rental agreement to clarify expectations about use of common spaces, for example, and the like. But it would be up to the landlord to evict a roommate for non-payment of whatever obligations they are required to pay by the lease.
Does My Roommate Agreement Need to Be In Writing?
If a roommate has not signed the landlord’s lease for a rental unit, they are a subtenant of the roommate who did sign the lease. There are three kinds of subtenants:
- Authorized subtenants in a unit for which the lease authorizes subletting;
- Subtenants in a unit for which the lease does not authorize subletting but who have signed a written subtenant agreement with the tenant;
- Subtenants who do not have a written agreement but rather an oral one. They may or may not be authorized by the lease agreement between the tenant and the landlord.
If a tenant does not have their landlord’s agreement that they can sublet the space, the tenant may have violated the terms of their lease. If a person rents an apartment with the intention of subletting rooms to others, they may want to have a provision in their lease that allows this. Otherwise, having subtenants may violate the terms of the lease and open the tenant to eviction.
Typically, it is in a tenant’s best interest to get their landlord’s agreement to subletting. Of course, in very tight rental markets, this may not be possible. Subletting may be an informal arrangement for good or ill.
If a tenant has a roommate sign a subtenant agreement or roommate rental agreement, and the roommate does not pay the rent, the tenant may proceed with the eviction process as if they are a landlord. First, the tenant who sublets has to have a sublet agreement with the tenant. It is best to put it in writing.
The sublet agreement would need to have the following provisions:
- A provision for notice of nonpayment and eviction;
- A provision for grounds for eviction, e.g., non-payment of rent or other violation of the sublet agreement serves as grounds for eviction.
The eviction process involves filing an action for unlawful detainer in the appropriate court in the county in which the property is located. The complaint has to be served on the subtenant. If there has to be a hearing or even a trial, the tenant must attend.
If there is a trial, the tenant would have to prove that there was a subtenant agreement, the subtenant violated it, and under the terms of the sub-tenancy agreement, the subtenant can be evicted. If the tenant wins an order of eviction, they must then enforce it.
Should I Include Any Penalties for Violating the Agreement?
Courts generally enforce written roommate rental agreements to the extent that they address issues that involve the payment of rent, utilities, and security deposits. A roommate who is the sole tenant may want to include a provision in the sub-tenancy agreement requiring payment of a security deposit when the security deposit can be forfeited to the tenant, who pays what utilities, and when and what happens if the subtenant fails to pay utilities.
There could be a penalty for non-payment, including eviction and forfeiture of part of the security deposit, that would compensate for the missed utility payments.
Local law may restrict the kind of penalties that can be included in a residential lease or sub-tenancy agreement, so a person wants to inform themselves about local landlord-tenant law before drafting a sub-tenancy agreement.
Do I Need the Help of a Lawyer to Draft a Roommate Agreement?
If you live in a rental unit with roommates or plan to do so, you may want to consult a landlord-tenant lawyer. Landlord-tenant law can become complicated, and actions to evict a roommate may require special legal procedures.
An experienced landlord-tenant lawyer in your area is familiar with local law and local procedures in the court in your area that handles these cases. You are more likely to get the outcome you want from your shared rental living situation if you have an experienced lawyer on your side.
