So hard to get rid of a roommate from hell! In hindsight, it would have been much better for the renter if the lease had only been in her name.
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Is the LW California? If not, why so many citations of California rental law?
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I thought the statute of frauds states that the lease of real estate for a term of less than one year doest have to be in writing.....
Per the statute of frauds, which is common law and can be overwritten by statute, all real estate contracts must be in writing to be enforceable.
You are thinking about employment contracts that must be in writing if they extend beyond a year.
You are thinking about employment contracts that must be in writing if they extend beyond a year.
Decades ago, I knew someone whose roommate wouldn't pay her share of the rent. The lease holder knew that because she had underlying medical conditions, failure to pay the rent would mean she would lose her independence and likely be institutionalized.
Alas, many of her friends—including myself—were out of town and unavailable when they might have offered her help or useful advice. Instead, she killed herself.
I still think about Stacy and her horrible solution to her roommate problems.
Alas, many of her friends—including myself—were out of town and unavailable when they might have offered her help or useful advice. Instead, she killed herself.
I still think about Stacy and her horrible solution to her roommate problems.
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Rental law is interesting and certain aspects of this Question seem to defy commonsense but the location is Williamsburg in NYC not California. Real Estate law differ by state.
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Yes, I was wondering why there were so many California comments about a legal issue in NY. It is very hard to evict someone in NYC and from the facts, it sounds like (though it's not entirely clear) the roommate is not on the lease. The advice given in this column is correct for NY.
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It's not clear from the LW who is on the lease effective 4/1. That will make a big impact on the outcome. As of 4/1, if the ex-roommate + the LW are on the lease, then the ex-roommate is still responsible for coming up with his/her share of rent if the subleaser fails to pay the agreed upon amount.
If it's just the LW, solo, on the lease, then it's going to be more difficult unless the LW has a written contract with the subleaser. I agree that oral contracts are binding, but they are also hard to prove.
If the subleaser and LW are on the lease (this doesn't sound like it's the case since the subleaser is supposed to move out), then they are jointly responsible to pay the rent agreed upon in the lease. My guess is they could have their own written contract if one is paying more and one is paying less depending upon how the space is divided.
I think the moral of the story is it's really important to have things spelled out in writing before anyone moves in or out.
If it's just the LW, solo, on the lease, then it's going to be more difficult unless the LW has a written contract with the subleaser. I agree that oral contracts are binding, but they are also hard to prove.
If the subleaser and LW are on the lease (this doesn't sound like it's the case since the subleaser is supposed to move out), then they are jointly responsible to pay the rent agreed upon in the lease. My guess is they could have their own written contract if one is paying more and one is paying less depending upon how the space is divided.
I think the moral of the story is it's really important to have things spelled out in writing before anyone moves in or out.
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The new tenant is not a subleaser - she is subletting. She is not part of the lease unless the rental property owner approved the change to the lease terms.
I doubt that the rental property owner is aware of the breach of the lease agreement and the substitution of a new tenant for the former, who is not paying rent to the rental property owner.
So you can read my comments but the remaining tenant has got to get herself into gear, and actually, she needs an attorney. To evict someone is very difficult.
My friend had a man literally take over his one bedroom apartment for a year. I blasted the guy with demands to leave. Nothing could make him leave. Finally, my friend got the aid of an attorney and went through a four month ordeal of getting him out, to the very last legal procedure, the Sheriff's removal of this man from the rental premises.
The man who took over the apartment was very ill, and was taking all kinds of medications.
I doubt that the rental property owner is aware of the breach of the lease agreement and the substitution of a new tenant for the former, who is not paying rent to the rental property owner.
So you can read my comments but the remaining tenant has got to get herself into gear, and actually, she needs an attorney. To evict someone is very difficult.
My friend had a man literally take over his one bedroom apartment for a year. I blasted the guy with demands to leave. Nothing could make him leave. Finally, my friend got the aid of an attorney and went through a four month ordeal of getting him out, to the very last legal procedure, the Sheriff's removal of this man from the rental premises.
The man who took over the apartment was very ill, and was taking all kinds of medications.
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@ RR - Yes, I know. Getting someone evicted is difficult, especially in NYC. I have known people who did not pay rent in NYC for years and were ultimately allowed to stay in their apartments. I will not get into the details here. For the sake of this LW, I hope the subleaser will move out on the agreed upon date so the LW can move on with her life. In my experience, housing situations can be very stressful in NYC because it's not easy to evict people and it's very expensive to move. I wish the LW the best with her situation.
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I am not a lawyer and I don't play one on tv but it makes sense that the LW has to give written notice to the roommate to get her to move out or pay a higher rent. Also every building or complex I have lived in has required all residents of an apartment to be on the lease and to have successfully passed criminal, credit and rental history checks. I know that is not the question the LW asked but she could be in violation of the terms of her lease with respect to this roommate.
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True, this article is missing allot of information. There is no situation where a tenant can willy nilly bring in a new tenant who contributes to the rent, because that person is a subletter and the tenant become legally liable for everything that subletter might do. Most tenants cannot possibly afford the necessary insurance to cover the real costs of damages, physical to a property, that a subletter cause.
The American Bar Association has a form for municipalities to sue Air B and B for the above mentioned issues.
Tenants do not have a legal right to negotiate any matters pertaining to the property of another, except in the case of an entire house - like mine. California has a legacy law going back into the 1800s, some of the first case law for California. In that case, a tenant has control over the trees that grow on her rented property. My landlord cut a heritage tree and was severely punished for his violation by a municipality but, I have a right to sue him for the destruction of the tree too, since it was part of my rental. And I have a right to sue the company that disturbed me too, for two weeks. The tenants in apartments have no legal rights to manage most of their rental property.
The American Bar Association has a form for municipalities to sue Air B and B for the above mentioned issues.
Tenants do not have a legal right to negotiate any matters pertaining to the property of another, except in the case of an entire house - like mine. California has a legacy law going back into the 1800s, some of the first case law for California. In that case, a tenant has control over the trees that grow on her rented property. My landlord cut a heritage tree and was severely punished for his violation by a municipality but, I have a right to sue him for the destruction of the tree too, since it was part of my rental. And I have a right to sue the company that disturbed me too, for two weeks. The tenants in apartments have no legal rights to manage most of their rental property.
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Perhaps this article is speaking in practicalities or there are special wrinkles to NY housing law that I don't know about, but there are several statements in this article that seem incorrect. Oral contracts are binding. An executed, fully-integrated document makes the terms easier to prove, but contract law generally does not discriminate against oral contracts and their terms.
Furthermore, no discussion of the other original lessee, who is still contractually bound to the landlord to remit their portion of the rent. Old roommate has contracted with the sublesee to pay sublessor's portion of the rent, but the sublessor is still bound under the original lease. Both signers of the original lease are jointly and severally liable for contract damages if performance of the contract (i.e. payment of rent) doesn't happen. One of the penalties for nonpayment is eviction.
So, while the original leaseholder who still lives in the apartment must pay the absent leaseholder's portion of the rent if the former doesn't want to be evicted, they should go after the absent leaseholder for the portion of the rent the sublesee isn't paying. Sublessor can then go after sublessee for indemnification, but it sounds like sublessor just made a bad, money-losing contract here.
I could be totally wrong.
Furthermore, no discussion of the other original lessee, who is still contractually bound to the landlord to remit their portion of the rent. Old roommate has contracted with the sublesee to pay sublessor's portion of the rent, but the sublessor is still bound under the original lease. Both signers of the original lease are jointly and severally liable for contract damages if performance of the contract (i.e. payment of rent) doesn't happen. One of the penalties for nonpayment is eviction.
So, while the original leaseholder who still lives in the apartment must pay the absent leaseholder's portion of the rent if the former doesn't want to be evicted, they should go after the absent leaseholder for the portion of the rent the sublesee isn't paying. Sublessor can then go after sublessee for indemnification, but it sounds like sublessor just made a bad, money-losing contract here.
I could be totally wrong.
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CALIFORNIA CIVIL CODE - CIV
DIVISION 3. OBLIGATIONS [1427 - 3272.9] ( Heading of Division 3 amended by Stats. 1988, Ch. 160, Sec. 14. )
PART 2. CONTRACTS [1549 - 1701] ( Part 2 enacted 1872. )
TITLE 2. MANNER OF CREATING CONTRACTS [1619 - 1633] ( Title 2 enacted 1872. )
1622.
All contracts may be oral, except such as are specially required by statute to be in writing.
There are many more codes here in the many volumes of California Law pertaining to oral agreements, but New York State might not have such a law.
DIVISION 3. OBLIGATIONS [1427 - 3272.9] ( Heading of Division 3 amended by Stats. 1988, Ch. 160, Sec. 14. )
PART 2. CONTRACTS [1549 - 1701] ( Part 2 enacted 1872. )
TITLE 2. MANNER OF CREATING CONTRACTS [1619 - 1633] ( Title 2 enacted 1872. )
1622.
All contracts may be oral, except such as are specially required by statute to be in writing.
There are many more codes here in the many volumes of California Law pertaining to oral agreements, but New York State might not have such a law.
"sublessor is still bound under the original lease. " Not exactly.
The former tenant who vacated did not execute a written document stating that the subletter was taking over the room's monthly rent.
An oral agreement is binding in California see my comment with the exact code (there are a huge number more of them related to oral contracts in real property). But an oral agreement cannot substitute for a written agreement where a written agreement is controlling.
It is not that the oral agreement is not binding but it has no force or effect against the prevailing written agreement between the real parties, the rental property owner(s) and the signers of the original written lease agreement.
My bet is that a mean spirited court would accept an eviction without notice based on the facts presented but a tolerant court would find the necessary legal procedures to prevent the sublettor (not subleasee because she is NOT on the lease in any way), from experiencing homelessness.
I would write a 30 day notice to quit and have it served immediately. The remaining tenant has got to get quick with finding a replacement tenant to be placed on the lease or find herself being evicted. The rental property owner agreed that two young women, presumably working full time, can pay a portion of the monthly rent, not one. The rental property owner would have the right to conduct a new background and credit check against the existing original tenant to see if her finances were in order and that she is capable of paying rent on time and in full.
The former tenant who vacated did not execute a written document stating that the subletter was taking over the room's monthly rent.
An oral agreement is binding in California see my comment with the exact code (there are a huge number more of them related to oral contracts in real property). But an oral agreement cannot substitute for a written agreement where a written agreement is controlling.
It is not that the oral agreement is not binding but it has no force or effect against the prevailing written agreement between the real parties, the rental property owner(s) and the signers of the original written lease agreement.
My bet is that a mean spirited court would accept an eviction without notice based on the facts presented but a tolerant court would find the necessary legal procedures to prevent the sublettor (not subleasee because she is NOT on the lease in any way), from experiencing homelessness.
I would write a 30 day notice to quit and have it served immediately. The remaining tenant has got to get quick with finding a replacement tenant to be placed on the lease or find herself being evicted. The rental property owner agreed that two young women, presumably working full time, can pay a portion of the monthly rent, not one. The rental property owner would have the right to conduct a new background and credit check against the existing original tenant to see if her finances were in order and that she is capable of paying rent on time and in full.
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A contract in California can be oral depending on the amount of money being exchanged and for only one year. Other states have different laws.
However, an oral agreement cannot supercede, amend, alter, or terminate a pre-existing written agreement, in particular a lease.
"sublessor is still bound under the original lease. " Not really, and that is why I think the attorney stated, that the person in the apartment is "JUST A ROOMMATE." That attorney meant to say, I believe, that the sublessor has NO RIGHTS.
In law there are rights and responsibilities. If the subletter means to circumvent payment of the actual rent owed, then she is basically waiving any rights to remain in the tenancy.
If the landlord wanted to evict both subletter and the original prevailing tenant, he or she or them, would sue the original tenant directly, and the subletter, as ANYONE WHO RESIDES in the apartment. Anyone would have the legal right to be named in the suit, after service of process. If not, if the prevailing tenant won in the eviction somehow, the landlord could get a writ of eviction to remove the subletter from the property after a default judgment against the subletter as an UNKNOWN party was granted.
However, an oral agreement cannot supercede, amend, alter, or terminate a pre-existing written agreement, in particular a lease.
"sublessor is still bound under the original lease. " Not really, and that is why I think the attorney stated, that the person in the apartment is "JUST A ROOMMATE." That attorney meant to say, I believe, that the sublessor has NO RIGHTS.
In law there are rights and responsibilities. If the subletter means to circumvent payment of the actual rent owed, then she is basically waiving any rights to remain in the tenancy.
If the landlord wanted to evict both subletter and the original prevailing tenant, he or she or them, would sue the original tenant directly, and the subletter, as ANYONE WHO RESIDES in the apartment. Anyone would have the legal right to be named in the suit, after service of process. If not, if the prevailing tenant won in the eviction somehow, the landlord could get a writ of eviction to remove the subletter from the property after a default judgment against the subletter as an UNKNOWN party was granted.
Is the first rommate still on the lease? Doesn't she still have obligations?
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That tenant was negligent to inform the rental property owner of her vacating the rental premises. If she didn't, yes, both the prevailing tenant who allowed the former tenant to bring the subletter in, and the tenant who vacated are liable for everything that the subletter does to the apartment and or rental premises as damage and rent.
So the prevailing tenant or original co-tenant can sue the tenant who vacated for any damages that she might experience. But a court would look to both tenants and might rule against the prevailing tenant because she allowed the arrangement without notice and approval of the real property owner.
Courts hate these situations.
So the prevailing tenant or original co-tenant can sue the tenant who vacated for any damages that she might experience. But a court would look to both tenants and might rule against the prevailing tenant because she allowed the arrangement without notice and approval of the real property owner.
Courts hate these situations.
As I read this, the lease is expiring. If the replacement tenant wants to stay on, a new lease would need to be negotiated. In San Francisco (and I suspect NY) local rent control laws would supercede common law. Btw, in California verbal contracts can be binding, but a contract which lasts longer than a year needs to be written to be enforcable.
"Oral agreements are not binding. "
Untrue in California. All oral agreements are binding for one year from the date of execution. There are exceptions. But in housing, after one year the oral rental agreement needs to be transferred into writing.
The tenancy described is that of a sublettor, who is contracting with the original lessee. It is the original lessee who breached the lease and did not allow the new tenant to take over the lease.
The lease between the original co-tenant and the subletter was for a restricted amount of time. In California, no notice is needed to be given. The term of the tenancy expired on the date the original lease was to be renewed.
The remaining tenant bears the burden of finding a new cp-tenant, paying all the monthly rent on time, and evicting the subletter.
The sum of money for rent is irrelevant that the subletter is paying the prior co-tenant because, it seems that the prior co-tenant is still responsible for the full rent each month.
Untrue in California. All oral agreements are binding for one year from the date of execution. There are exceptions. But in housing, after one year the oral rental agreement needs to be transferred into writing.
The tenancy described is that of a sublettor, who is contracting with the original lessee. It is the original lessee who breached the lease and did not allow the new tenant to take over the lease.
The lease between the original co-tenant and the subletter was for a restricted amount of time. In California, no notice is needed to be given. The term of the tenancy expired on the date the original lease was to be renewed.
The remaining tenant bears the burden of finding a new cp-tenant, paying all the monthly rent on time, and evicting the subletter.
The sum of money for rent is irrelevant that the subletter is paying the prior co-tenant because, it seems that the prior co-tenant is still responsible for the full rent each month.
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Your explanation makes more sense to me than the one given in the column. However wouldn't it have to be the landlord who would allow a new tenant to take over the lease? It would have been prudent for the remaining lessee to have had it all in writing from the start prior to allowing the subletter to move in.
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This article published an erroneous opinion of legal attorney. The subletter is not just a roommate. If the subletter paid on a monthly basis partial rent to the remaining co-tenant and the tenant who vacated, paid the difference, then that subletter did establish tenancy.
If the rental property owner executed the original rental agreement, and approved of the sublet, the next lawful step would be the rental property owners' renewal of the rental property lease, for another year, and that owner has to be given notice by the tenant who vacated, that she left. The remaining tenant has to
The tenant who vacated is then liable for the subletter in some regards. The current tenant could sue her former tenant for the costs to evict.
A real property lawyer who handles evictions would have the necessary facts to determine if 1) no notice is needed, 2) a 3 day notice to quit or pay rent and a 30-day notice to vacate is needed.
Most rental contracts will state "this will renew at the end of the one year term"; if not, he contract will convert to a month to month term.
The remaining tenant is going to have a difficult time persuading a landlord of her ability to pay rent on time given her present situation. Now, the landlord can write a notice stating, I am not going to renew the lease, and you have 30 or 60 days to vacate, depending on the state. I would give request to renew and amend lease to landlord, quit notice to current subletter, and find a new roommate ASAP.
If the rental property owner executed the original rental agreement, and approved of the sublet, the next lawful step would be the rental property owners' renewal of the rental property lease, for another year, and that owner has to be given notice by the tenant who vacated, that she left. The remaining tenant has to
The tenant who vacated is then liable for the subletter in some regards. The current tenant could sue her former tenant for the costs to evict.
A real property lawyer who handles evictions would have the necessary facts to determine if 1) no notice is needed, 2) a 3 day notice to quit or pay rent and a 30-day notice to vacate is needed.
Most rental contracts will state "this will renew at the end of the one year term"; if not, he contract will convert to a month to month term.
The remaining tenant is going to have a difficult time persuading a landlord of her ability to pay rent on time given her present situation. Now, the landlord can write a notice stating, I am not going to renew the lease, and you have 30 or 60 days to vacate, depending on the state. I would give request to renew and amend lease to landlord, quit notice to current subletter, and find a new roommate ASAP.
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