sacramento report

By Monica Williamson

Like it or not, roommate conflicts often land at the doorstep of the property owner. For young college students, rental housing is often their first independent living arrangement, and they do not have experience with contracts and dispute resolution, or grasp the obligations and responsibilities associated with a rental contract. This article discusses some common disputes that arise when co-tenants share rental housing, as well as practical considerations when faced with disputes.

Screening Co-Tenants
One of the fundamental considerations when renting to co-tenants is that all co-tenants must be treated in the same manner. In other words, a rental property owner may not have separate screening criteria when renting to married or unmarried couples, or even unrelated co-tenant applicants.

The same general rules that apply to screening any applicant are applicable to screening co-tenants. Each applicant 18 years of age or older should be required to complete an application to rent and evaluated to determine whether they meet established screening criteria. Be aware that if married couples are permitted to aggregate their income or combine their credit scores to meet the screening criteria, unrelated co-tenant applicants must be allowed to do the same.

When an original tenant is vacating and another one is proposed to replace him, the replacement tenant should be screened in the same manner as any other applicant. Once the replacement tenant has been qualified, all tenants who will be residing in the (same) unit should be required to execute a new rental agreement. Property owners should maintain complete and current information on every person who is residing in the rental unit.

Rental Contract
Every person residing in the unit should be named in the rental or lease agreement. Occupants over the age of 18 should be required to sign the agreement, while those under 18 may simply be named on the rental agreement of the responsible adult.

Co-tenants may decide among themselves how to allocate their individual rent responsibilities. Despite such an agreement, however, each individual who signs the rental or lease agreement is liable not only for his “share,” but for the entire rent, should any other co-tenants default. Landlords may also insist on receiving one rent check for the entire rent, rather than collecting several checks from each co-tenant.

In the absence of language to the contrary, subletting or assigning the right of possession by a tenant is permissible. If a tenant sublets their right of possession, the original tenant remains responsible for the payment of rent.

Security Deposits
One of the most common disputes between a landlord and a tenant is the disposition of a tenant’s security deposit. California law is clear on the amount of money a rental property owner can collect from a tenant and provides a specific time within which the owner must return the deposit. One situation that is not covered under the law is how to handle the disposition of a security deposit when there are multiple tenants on a rental agreement and not all of the tenants plan to vacate the premises at the same time.

The purpose of a security deposit is to ensure that the unit is restored to its pre-move-in condition (absent normal wear and tear). California law does not require an owner to return the deposit until 21 days after all tenants have vacated the premises and does not provide for the return of a deposit to an individual roommate.

Unless the rental agreement provides otherwise, the security is not divisible and stays with the unit. Accordingly, the deposit should not be returned until after the unit has been vacated and the owner has had the opportunity to assess and make appropriate deductions for damage to the premises.

As a practical matter, this means co-tenants must work out among themselves what to do when a tenant leaves. The following solutions are commonly used to resolve the type of situation described above:

• an incoming (replacement) tenant may pay the departing tenant his share of the deposit (this is advisable only if the unit has been maintained prior to the new tenant taking possession since any preceding damage would be imputed to them);
• if there will not be any replacement tenants, the remaining tenant(s) can essentially buy out the departing tenant’s interest in the security deposit;
• the departing tenant may wait until the co-tenant(s) have vacated and seek reimbursement at that time (this may create problems, however, in the situation where damage occurred to the unit after the first tenant vacated); and
• if the tenants cannot agree to resolve the dispute among themselves, those seeking to recover their share of the deposit may bring an action in small claims court against their co-tenants to recover their share of the deposit.

A landlord can legally hold all co-tenants responsible for the negative actions of one tenant and terminate everyone's tenancy with the appropriate notice. Indeed, California law has no provisions for so-called partial eviction: where only one tenant is named in a notice to terminate. If it is necessary to terminate the tenancy of an offending tenant, all tenants must be named. If the property owner wants to work with the nonoffending tenant, nothing in the law would preclude execution of a new rental agreement with any nonoffending tenant(s).

Addressing Roommate Disagreements
Although landlords are under no duty to involve themselves in disagreements
between roommates, there are some proactive steps that can be taken to mitigate
potential disruptions.

For example, the landlord may encourage them to develop a roommate agreement (between themselves) that clarifies some of the basic issues about sharing a residence. A roommate agreement is not binding on the landlord, but it is binding on the tenants who sign it.

In any case, if any dispute among roommates becomes serious enough to threaten the health and safety of tenants or to disrupt the quiet enjoyment of other tenants in the building, the landlord may need to step in to minimize potential liability.

There are many valuable resources on the internet that provide parameters for a roommate agreement. Roommates should always have such an agreement amongst themselves. At a minimum, a roommate agreement should include provisions that cover: rent payments, utility bills, guests, privacy, quiet hours, smoking, pets, personal possessions, food, security deposit, bedrooms and parties.

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The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. Monica Williamson is the California Apartment Association’s vice president of public affairs. Copyright © 2007 by SF Apartment Magazine. All rights reserved.