Question: My roommate has become a flake. She lost her job a few months ago and basically moved her boyfriend into our rental without my permission. But he isn’t working either and has no money. Each month we would typically pay our respective 50 percent share of the rent directly to the landlord, but some months I covered a portion of her share. Since we moved in two years ago, I have consistently paid my share of the rent but my roommate is now only paying a portion of her share. Apparently, she lied to me and didn’t pay any of her portion of the rent last month. I have just learned that my roommate hid the fact that the landlord had served us a legal notice for non-payment. I have contacted the landlord and tried to explain the situation but she tells me that my problems with my roommate are not legitimate excuses to not pay the rent.

While I understand her position, I was able to negotiate that if we leave immediately the landlord will drop the legal action and we can make payments on the unpaid rent. However, my roommate and her boyfriend are refusing to leave since they do not have any money or anywhere to go. They claim that they will get a new roommate and everything will be just fine. How can I be held responsible for this mess since I am the only one that is paying my share of the rent? What happens if my roommate and her boyfriend refuse to leave? Am I still responsible if they stay and find a new roommate? What about my share of the security deposit? I want to get out of this mess as soon as possible. Finally, how do I get my roommate to pay me for her share of past rent that she didn’t pay?

Property Manager Griswold replies:

You and your roommate are joint and severally responsible for the lease and all of the obligations created by signing that legal document. Thus, the landlord can seek enforcement of the terms of the lease, including payment of all of the rent, from either you or your roommate. Landlords will generally go after the tenant that is more likely to make the payment of past due rents and are not concerned about any internal agreements about the living arrangements or payment burdens. I hate to be the bearer of bad news – but your clearly were not a good judge of character when you selected such an irresponsible roommate. Now you could very likely be left holding the bag for all of the problems created by the roommate. I think it is important to clarify some erroneous assumptions or false impressions I note in your question.

First, there is no such thing as “my share” and “their share” of the rent or any other obligations as far as the lease or contract with the landlord is concerned. You may have a verbal or written agreement between you and your roommate but that is not relevant or binding upon your landlord. In other words, the full rent needs to be paid to the landlord in a timely manner each month regardless of any financial challenges faced by individual roommates. Also, the receipt by your roommate of the legal notice for non-payment of rent is binding on both of you whether your roommate tells you or chooses to hide or destroy it. This is why it is imperative that you make sure your receive a receipt from the landlord each month showing the rent has been paid in full especially if you didn’t make or at least personally observe the entire payment being made. Next, the fact that the roommate will not leave the property means that both of you are still in possession of the rental unit. Again, while the failure of your roommate to vacate may give you some additional bases upon which you can sue your roommate, the bottom line is the landlord will be looking for the rent up until the rental unit has been completely vacated. The only way you will be able to “get off the lease” is with a written release from the landlord who will only do so if it is in their best interests. You seem to be the more responsible party so the landlord is not motivated to let you off the lease until they know that your roommate, her boyfriend and the new proposed roommate meet all of their rental qualification criteria.

By the way, if the landlord is prudent, they are not going to be sending you the security deposit or “your share” of the security deposit as the entire security deposit should run with the lease and not be accounted for and/or returned until the tenancy is ultimately terminated sometime in the future. Thus, any arrangements for you to receive any or all of the security deposit are between you and your roommate or the new proposed roommate. Now if the idea of your roommate staying and finding a new roommate doesn’t work and ultimately the rental unit is vacated, remember that you are likewise responsible joint and severally for each and every item that the landlord finds is damaged or beyond normal wear and tear. So, even if you personally have already vacated, you still have a vested interest in making sure that they don’t destroy the property during their fights with their boyfriend or on their way out the door. Naturally, this financial responsibility extends to the entire premises so you cannot argue that the large hole in the wall of your roommate’s bedroom is solely their responsibility. This is in addition to your financial responsibility for the balance of the lease term. While the landlord has an affirmative duty to mitigate or minimize your damages by making reasonably diligent efforts to re-rent the property, you and your roommate remain joint and severally responsible for all rent and any reasonable costs of re-renting the property incurred by the landlord as the result of your breaching the lease. As you have unfortunately experienced, a poor choice of a roommate can lead to very serious problems. If you happen to select a “bad” or financially irresponsible roommate, they can leave you holding the bag financially and ruin both your credit and tenancy history.

For all of the above reasons, this is why I always recommend that roommates should check each other out even more carefully than the landlord checks you out. At this point, I strongly urge you to use all efforts to get your roommate and her boyfriend out of the rental unit and let the landlord re-rent the property to someone else before you end up paying even more rent and damages due to your roommate’s irresponsible behavior. Then document all of the costs and expenses incurred by you beyond your agreement to share costs, and pursue the balance owed to you – first with a demand letter and then small claims court.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.

E-mail your questions to Rental Q&A at rgriswold.inman@retodayradio.com.

Questions should be brief and cannot be answered individually.

***

What’s your opinion? Send your Letter to the Editor to opinion@inman.com.

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