Sharing One Partners Rented Home

92  |  A Legal guide for Lesbian and Gay Couples
Sharing One Partner’s Rented Home
Almost as common as two people looking for a rental home together is
one person moving in with the other. This can be simple and smooth
where the landlord is reasonable, but can raise tricky problems if the
landlord disapproves of same-sex relationships or doesn’t want another
person to move in for whatever reason. Don’t try to argue with someone
you know you can’t convince. Better to spend your time and energy
looking for a place where the landlord is pleasant and accepting.
Sometimes, especially if the landlord lives far away or isn’t likely to
make waves, it might seem to make more sense to just have your partner
move in and worry about the consequences later. However, if your lease
or rental agreement requires you to notify your landlord of any plans to
add an occupant or limits the number of people who can occupy your
unit, you are legally required to advise the landlord that another person
plans to move in. Moving in an unauthorized occupant in violation of a
lease clause will be grounds for eviction.
Even without such a requirement, it’s normally wise to notify your
landlord, who will almost surely figure it out anyway. It’s especially
important to avoid looking sneaky if you have a month-to-month
tenancy in a non-rent-control area, where the landlord can evict you for
any reason. Whether you tell the landlord that you’re lovers or merely
roommates is entirely up to you.
Often, landlords want more rent for an additional person. Unless a
local rent control law prohibits it or the amount is exorbitant, it’s probably
better to accept a rent increase than to start apartment hunting. However,
you can counteroffer a lower amount, letting the landlord know that the
two of you may look elsewhere or you might even move out yourself, if
you can’t reach an acceptable compromise.
In most jurisdictions, the landlord also has a legal right to change other
conditions of the tenancy when a tenant adds a roommate and they sign a
new agreement. One change that is particularly likely is an increase in the
security deposit. However, this is an area where the sky is not the limit.
Many states limit the amount of security deposits, usually to a multiple of
the monthly rent.
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The Rights and Responsibilities of Your New Housemate
If Jason moves into Peter’s apartment, does Jason have a legal relationship
with Peter’s landlord? More specifically, does Jason have a legal duty to
pay rent if Peter fails to? If Peter moves out, does Jason have the right to
stay? If Peter damages the kitchen counter or lets his dog scratch the door,
does Jason have a legal obligation to pay the landlord for the damage?
Jason can become a full-fledged cotenant and have all the legal rights
and responsibilities that go with tenant status, by doing any of the
following:
• having the landlord prepare a new lease or rental agreement that
includes both Jason and Peter as cotenants
• talking to the landlord and agreeing orally that Jason will become a
cotenant. Jason must be careful, however—if the landlord reneges,
Jason may have a hard time proving there was an agreement.
• paying rent directly to the landlord or property manager. If Jason
does this, especially for a while, an “implied contract,” as it is
known in legalese, is formed. Nothing formal has been said or
written down, but the conduct of both Jason and the landlord
creates a landlord-tenant relationship.
Tip
The landlord can’t accept rent and then protest. Even if your lease
prohibits someone else from moving in, once your landlord accepts rent knowing
that you live with someone, many courts will refuse to let the landlord enforce
the lease prohibition.
There may be special laws about this where you live. For example, in
New York City, landlords are prohibited from evicting a living-together
partner if the couple have lived together for at least two years and can
show “an emotional and financial commitment and interdependence.”
94  |  A Legal guide for Lesbian and Gay Couples
Making Your New Housemate a Subtenant
In some situations, you may not want your new housemate to become
a full-fledged tenant with all the same rights and responsibilities that
you have. Instead, you may want to set up a tenant-subtenant situation,
in which the newcomer becomes your tenant. The subtenant pays rent
to you, and has no direct relationship with the landlord. The crucial
difference between this arrangement and a cotenant arrangement is that
in a tenant-subtenant situation, you have the right to end the subtenancy.
When the two of you are cotenants, only the landlord can terminate the
tenancy of either or both of you.
This may sound attractive to you because it means you won’t lose your
apartment if the relationship doesn’t work out, but you’ll find that most
savvy landlords will not allow it. From their point of view, it’s always
better to have direct relationships with all residents, which allows them to
demand the entire rent from any resident. They are also leery of allowing
a new resident on their property when they haven’t had the opportunity
to screen that new person. Don’t be surprised if your request to sublet
your space is met with a firm “No,” and an offer to screen the proposed
new resident and—if the screening results are positive—add the new
person as a tenant to your lease or rental agreement.
Putting Your Agreement in Writing
Just as you should when you rent a place together, when one partner
moves into an apartment or house already rented by the other, it’s a good
idea to write down your understanding. Most important, make it clear
whether you’re entering a cotenant or tenant-subtenant arrangement. If
you fall into tough times, a question like, “Whose apartment is this?” can
come up. If you write down your understanding when you begin living
together, you are forced to clarify the issues while you’re both loving, not
combative. Below is a sample that may help.
The agreement below will work only if the partner who lives in
the apartment has already talked to the landlord. For example, in
this agreement, Peter promises to sign a new lease with the landlord
that includes Roger as a tenant. If Peter hadn’t discussed this with his
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Sample Moving-In Agreement
Roger Rappan and Peter Majors agree as follows:
1.Roger will move into the apartment that Peter rents at 111 Prairie Street,
Chicago, Illinois, on March 1, 20xx. Beginning on that date, Roger will
pay Peter one-half of the monthly rent, currently $1,400, on the first of
each month. Peter will continue to pay the landlord the entire rental
amount on the first of each month for the remainder of the lease term
(six months).
2.Peter will continue to pay the electric, gas, water, garbage, and monthly
telephone service charges, and Roger will reimburse Peter for one-half of
all these expenses, immediately upon Peter’s submitting the bills to him.
3.For the first six months, Peter will have the first right to stay in the
apartment should he and Roger separate. If either person decides that
Roger should move out during this period, he will give (or be given) 30
days’ written notice and will be responsible for his share of the rent and
all utilities during the 30 days. The partner who remains will be solely
liable for any subsequent rent due.
4.After the initial six-month period, if Peter and Roger decide to continue
living together, they will both sign a new lease with the landlord.
From this point forward, if they break up but both want to stay in the
apartment, a third party chosen by both will flip a coin to determine who
gets to stay.
3/1/20xx
Roger Rappan
3/1/20xx
Peter Majors
Date
Date
Roger Rappan
Peter Majors