How are you going to handle this so that a) you have some control over the new tenant, b) you are financially protected, and c) you don’t have a lot of extra trouble?
You have four options. The first is to simply allow the additional tenant with no written agreement. Obviously, this is a big mistake. The second is to create a new lease that adds the second tenant (so that both sign the same document). I don’t recommend this because there it adds a lot of complications – who is responsible for which damages, are both equally liable for the rent, and so on.
The third is to put the roommate on an entirely separate lease, and create a new one for the original tenant – charging each (almost always) half of the total rent required. Now you have two completely separate tenants in one unit. The danger with that approach is that if one tenant bails, the first one is still a tenant in good standing, yet you’re only getting half the rent you need from your unit.
Here’s a fourth approach that I think is actually the best. Why not have the existing tenant create a separate arrangement with the new roommate? This is not a sub-lease, although it is similar. The new roommate has to follow your rules (as would any guest staying at the apartment). The legal arrangement is essentially an agreement between three parties; the new tenant, the original tenant and yourself. Key points:
- The new tenant owes rent and security deposit to the existing tenant, not you
- The initial term of the arrangement must end at or before the initial term of your lease arrangement with the original tenant
- The arrangement is null and void and the new tenant has no right to the apartment if the original tenant moves out for any reason
- The new tenant must follow all the “behavioral” rules established by you in the original arrangement.
- The new tenant must pass whatever background checks you applied to the first tenant.
There is one legal problem with an arrangement like this. Since the new tenant owes rent to the original tenant, and nothing to you, any agreement between you and this new tenant may not be binding. Generally contracts require consideration to be valid and there is no consideration in your arrangement with the new tenant. Therefore, it makes more sense to create two separate arrangements. The first is between you and the existing tenant, and specifies his obligations in consideration of being able to bring in a roommate. He has to enforce certain rules (the same rules you enforce for him). He can’t sign an agreement with the roommate unless you have approved it (in reality, you will draft it). He can’t bring in a specific roommate without your approval.
Having made such an arrangement with the existing tenant, you can now let him and the new roommate make their own arrangement, previously reviewed by you. The advantage to this system? You get all the rent you are owed without responsibility for a second tenant, and the original tenant gets to keep his place. It’s a win-win.
Obviously you will need to check your local laws to make sure this arrangement is legal.
The new roommate’s obligations are entirely to the original tenant. So if the new guy screws up, it’s up to your original tenant to fix it. He has an obligation to you to do so. For example, suppose the new roommate doesn’t pay the rent owed to the original tenant. It is up to the original tenant to evict him.
It gets more painful if the original tenant doesn’t meet his obligations. Suppose the rent on the apartment is $800. The new roommate faithfully pays his share – say $400 – and the original tenant goes out and blows it all at the track. Now the new tenant is in trouble, because he doesn’t have an arrangement with you, and the original tenant is about to get evicted. That will trigger an eviction of the new roommate according to your arrangement.
That stinks for the roommate, but it’s not your problem. It is up to the original tenant and the roommate to work out.
I’ll be curious to read any comments and suggestions on this idea. My next blog post will cover situations where roommates want to take an apartment together.