Do You Need a Roommate Agreement?
There are a couple of situations for which you may want to consider a Roommate Agreement. One is from the beginning where both/all roommates sign the original lease, the other is for a person to sign a lease on their own, then bring in a roommate at a later time. In each case, a written Agreement between the roommates, though not mandatory, can avoid many future problems and misunderstandings.
If Roommates All Sign the Lease
The way leases generally work when multiple people sign is with the parties to the lease having joint and several liability. That means each and all of you can be held responsible for every single payment and obligation due under the terms of the lease. The lease only sets forth the terms between landlord and tenants, not the obligations and promises of the roommates to each other. Because the consideration of the terms and possible need of a Roommate Agreement is the same whether all sign the lease or the roommate is brought in later, these issues are all discussed below, but apply in all instances.
If You Bring a Roommate in On Your Lease
You signed a lease and decide that a roommate would be a good idea. The first thing to check, if you did not check it when you first read your lease, is whether the lease allows you to bring someone else to live in your premises. The lease may not speak to the issue of whether you can have a roommate or have an additional person live with you. Generally, that would mean you can do it without landlord involvement or consent.
It is also possible that your lease requires permission of the landlord for you to bring in a roommate. In that case, make sure you get that permission first so that you do not end up being evicted because you breached the terms of the lease! Your lease may have a provision that requires any roommate sign the original lease. If that is the case, you will not be able to throw out your roommate because they will have identical rights to yours under the lease. There could also be a problem if they do not bother to pay their portion of the rent and you are forced to. Remember that joint and several liability mentioned above? This is where it matters. To retain your residence, you will have to pay the entire rent and add-ons yourself. This is where an Agreement in writing, between you and a roommate(s) could save you.
Benefits of a Written Roommate Agreement
There is no requirement that roommates have written Agreements, though putting each roommates’ rights, obligations and responsibilities on paper can save future misunderstandings, avoid potential financial loss and establish standards where you can actually evict the roommate. Signing a written Agreement is taken more seriously than a casual conversation. You cannot enforce a casual conversation as effectively as you can a written Agreement.
In putting together a written Agreement, here are some issues to consider including:
Financial Protections and Benefits
What amount of rent will the roommate pay, on what date and to whom? Can you evict them if they do not pay?
Who will pay bills for utilities, Internet and trash collection, and how will that person be reimbursed for the roommates’ share; in whose name will utilities, etc. be billed?
If roommate has to go on lease, will they give you or landlord security deposit and, if to landlord, do you get some of your security deposit back at that time?
If the roommate causes damage to the premises, what are the responsibilities of repair and payment for damage?
If roommate damages your personal property what do you want to happen?
Are there any add-ons to rent in the lease on which the roommate should be making a pro-rata payment along with you?
If roommate is evicted or simply moves out, what is their continuing liability/responsibility for payment of rent?
Is roommate required to find a replacement roommate if he/she moves out?
Roommates’ and Tenants’ Rights, Responsibilities and Obligations
Who gets what bedroom and what access to premises is allowed?
Are overnight guests allowed, if so, how long can they stay?
Entertainment and parties: set standards and any limitations such as no parties during finals week or while someone is working on a major project for work, even limitations on the number of people that can be invited at the same time
Noise and music standards such as no loud music after a particular time (or ever), and make clear who decides what is “loud.”
Bind the roommates to the same obligations to which the tenant is bound under the lease to avoid any breaches of the lease (ie. No pets and roommate moves with a dog).
Basic cleaning and upkeep of the apartment: who is responsible for what and when?
Determine what will make you (as a tenant or roommate) completely insane in the living situation and put provisions in your Agreement to prevent the problem before it starts. For example, the smell of incense nauseates you, so you do not want incense used
Do you want a method to settle disputes such as mediation/arbitration?
Provision to throw the roommate out before the lease/Roommate Agreement ends, including how it can be done, under what circumstances
Formal notice to be provided to roommate for conduct that warrants eviction or to cure lesser infractions of the terms of the Agreement.
The level of formality of the Roommate Agreement and terms to be included is up to the people signing the Agreement, but it is easy to see that there are many matters to consider.
If the Roommate Fails to Meet Financial Obligations:
Absent a written contract, and legal effort to collect what is due will be your word against theirs on everything, including the amounts that are due. Collecting the funds, and even evicting a roommate will be extremely difficult, whether or not they are on the lease.
With a written and signed Roommate Agreement, you have a contract that can be enforced and as proof of the obligations and promises. You will have the proof of what was to be paid and the roommate’s failure to pay. Judges like that.
Frankly, judges like things that can be supported by substantive evidence, not merely one person saying the other has to pay, and the second person denying it. Contracts, receipts and copies of checks provide that evidence the judge wants. You can prove what is due, or from the roommate perspective, the roommate can prove what was paid or not paid. Remember to always keep records, receipts and bank statements to have evidence you may need in the future.
The tenant can also seek to evict the roommate. Again, this will be more difficult without a written contract. With a written contract, the tenant can show each and every provision of the Roommate Agreement that was violated (breached), and that those violations warrant eviction.
Depending on what provisions are in the Roommate Agreement about settling disputes, these matters may be mediated, arbitrated or litigated. When litigated, small claims court may be the best choice. Almost all small claims courts have websites with their forms and instructions for starting and responding to actions, though small claims courts have a limit as to how much money can be collected, often under $3,000.
If the Roommate Fails to Fulfill Other Obligations
The same principles hold true here as with failure to meet financial obligations, but here, the written contract might be even more important. Judges hate “touchy feely” issues such as subjective judgments of bad behavior.
If the promises and obligations are on paper in a formal Roommate Agreement, the judge has something objective to review for his or her decision. As there is evidence beyond the contract for financial matters, there can be additional evidence here as well, such as photographs, calendars, written notes and such things to demonstrate each side’s position on whether the Roommate Agreement was breached. Here, too, eviction based on breach of the Agreement is possible, if your written Agreement covers these issues properly.
One can easily see that a judge is unlikely to order someone to wash the dishes and vacuum every other week because they “said they would,” but if there is a written contract, the judge has something objective to work with.
As initially stated, there is absolutely no legal requirement for written and signed Roommate Agreements. Hopefully, the above gives you some food for thought in determining whether or not you want a Roommate Agreement.
Disclaimer: This information is provided for general informational purposes only. Nothing contained herein should be construed as legal advice of any sort and is not intended for that purpose regarding any subject matter.