Many roommates enter into their living situation with high hopes and positive expectations. Especially when roommates are also friends, they believe everything will go smoothly and that all they need is "an understanding" between them. But people may change, circumstances may change, and best friends do not always make the best roommates. It is wise to treat the mechanics of sharing a household as a business relationship in order to protect the personal relationship.
The suggestions below are not legal requirements but should help establish guidelines for problem-solving and peaceful co-existence.
Forming a New Household
Often the basis of disputes is a lack of good communication or a mismatch of lifestyles and expectations between roommates. To minimize misconceptions and false expectations, we recommend that:
A. Before moving in together and signing a lease, potential roommates thoroughly discuss the needs, expectations, and general ground rules that they wish to establish in a shared household. This also applies to a situation where a new roommate moves into an established household.
B. Roommates draw up and sign a roommate agreement that spells out their rights and obligations to each other, including, for example:
- Date of agreement
- Names of roommates
- Address of property
- Portion of rent and utilities to be paid by each roommate
- Total amount of security deposit paid and portion of that deposit paid by each roommate
- Agreement that each roommate will pay for damages caused by him/her or his/her guests
- Agreement that each roommate, if he/she needs to move out prior to the end of the lease term, will continue to pay his/her share of the rent unless he/she obtains the permission of the landlord and replaces himself/herself with another tenant acceptable to the other roommates, unless alternative arrangements are agreeable to all parties
- Who will find, interview, and decide on the new roommate
- Agreement that each roommate will pay a specific share of the cost of any repairs, improvements or other costs incurred in the operations of the household or due under the lease.
- Any other matters that the roommates think are appropriate, including guidelines for cleaning, quiet hours, food, guests, etc.
- Signatures of all roommates
The roommate agreement is just that: an agreement among the roommates. It is not binding upon the landlord. The lease is the agreement between tenants who signed the lease and the landlord. Tenants need to pay particular attention to the Joint and Several Liability which is their obligation to the landlord, as explained in the Landlord/Tenant Handbook.
C. If problems do arise, roommates should talk to each other and try to work them out when they occur rather than wait until they build up into unresolvable resentments. Mediation may be an option when roommates are unable to navigate a situation independently.
Perhaps the most common problem occurs when one roommate in a household needs to move out. When a roommate leaves before the end of a lease term, great care is needed to minimize confusion and to avoid creating problems. The lease should be reviewed to understand what legal and financial commitments are required.
Any tenant who has signed the lease is responsible for the rent for the entire duration of the lease whether he/she lives in the premises or not. If more than one person has signed the lease, each person individually and all persons collectively is/are responsible for paying the rent in full. If one roommate moves out and does not pay his/her share of the rent, the other roommates must pay the rent in full, or they will be subject to eviction for nonpayment of rent. Those roommates may then attempt to collect the money from the nonpaying roommate which they paid on his/her behalf. These requirements apply unless alternative arrangements are make by mutual agreement of the other roommates and the landlord. Reasonable accommodations should be make by all parties in this situation.
The following is a list of procedures for departing roommates that will help prevent problems. A roommate who is planning to move before the end of the lease term should:
A. Talk to the other roommates about his/her intention to move
B. Read the lease to see how the lease will affect his/her plans:
Is subletting/assignment prohibited? Even if the lease prohibits subletting, the landlord cannot usually unreasonably refuse to sublet
- Is the permission of the landlord required before the tenant can sublet or assign? Does permission have to be in writing?
- Are there any special conditions that must be met?
- Is there a restriction that only those persons named in the lease can occupy the premises?
C. Discuss with the roommates how to arrange for a replacement roommate:
What type of person would be acceptable to the other roommates and what is a reasonable criteria to use to identify this person?
- Who will arrange and pay for advertising, background checks, or credit checks?
- Who will receive calls and show the unit?
- Agreement by departing roommate to continue paying rent until new roommate is found and begins tenancy
D. Contact the landlord to find out how the landlord would like to handle:
Landlord's approval of new tenant
- New tenant's status on the lease
- Old and new tenants' security deposits
Note: Even if the lease does not require the landlord's permission to sublet, it is to the tenants benefit to communicate and work things out with the landlord.
There are many versions of subletting/assignment/replacement used in Boulder. Landlords and tenants may negotiate with each other to determine which version will work for them. Below are a few options. The landlord is not obligated to accept any of these options but again may not unreasonably refuse.
Option A: The landlord terminates the old lease. A new lease with the landlord is signed by the remaining tenants and the new tenant. The departing tenant has no further liability for rent. The landlord returns the security deposit, less damages, to all the original tenants. The landlord collects a new deposit from the remaining tenants and the new tenant. This alternative may be the clearest arrangement. However, few landlords do this, as it involves substantial work on the landlord's part.
Option B: The landlord amends the existing lease, removing the departing tenant's name and adding the new tenant's name. The departing tenant has no further liability for rent. The new tenant pays the departing tenant an amount of money equal to the departing tenant's security deposit. The new tenant now assumes all liabilities of the departed tenant, including liability for previous damages. The landlord will then owe any security deposit refund to the new, rather than the departed, roommate. This transaction should be documented in writing in an agreement signed by old roommates, the new roommate, and the landlord.
Option C: The departing tenant sublets to the new tenant. The departing tenant remains on the lease and is liable for all lease obligations for the remainder of the lease term. Below are some examples of ways in which this option could look for the involved parties.
The new tenant signs a sublease agreement and pays the deposit to the original departing tenant who retains the deposit. In this case, the landlord retains the original tenant's security deposit. When this option is taken the original tenant remains liable for all rent and damages until the end of the lease term. If the new tenant does not pay the rent, the other roommates and the landlord can hold the original tenant responsible for the payment. Due to "Joint and Several Liability," the landlord can also hold the other residing tenants responsible for monies owed. At the end of the lease term the landlord returns the deposits, less any damages, to the original tenant and the original tenant returns the deposit, less any damages, to the new
tenant. Holding the original tenant to any of these obligations may be difficult if they have left the area or failed to notify the other parties of their new contact information.
- The new tenant pays the deposit to the landlord and the landlord retains both deposits until the end of the lease term
- The new tenant pays his/her deposit to the landlord and the landlord returns the deposit he/she has to the original tenant
Option D: A hybrid or combination of the above options and/or other agreements that can be worked out among the parties (e.g... departing tenant subsidizes the new tenant's rent, the departing tenant pays a fee to the remaining tenants with the agreement that they will secure a new roommate, etc.).
It is important to remember that when you are involved in a "Joint and Several Liability" relationship and monies are withheld from your deposit the landlord does not have to determine who is the responsible party for the monies owed. Therefore, when tenants are being replaced it is in the best interest for everyone to do a walk-through of the unit to assess any damages before the change in tenancy takes place.
It is wise to investigate these options with the landlord at the point of signing the lease and then to specify in the roommate agreement exactly which procedure will be used if a roommate needs to move.
Note that in these alternatives, the departing tenant may not substitute his/her security deposit for any rent payment, in the absence of an agreement allowing him/her to do so.