JOINT AND SEVERAL LIABILITY
The phrase “Joint & Several Liability” is almost certain to appear in your lease. For example: “All lessees are jointly and severally liable for all obligations under this lease.” This means that each tenant is responsible for the full amount of rent and any other financial obligations listed in the lease, and that if one of the tenants defaults in some way, the landlord can sue all of the tenants on the lease, not just the defaulting tenant.
Most leases provide that the landlord can recover his reasonable attorney fees if he successfully sues you for breach of the lease. Some judges consider one-third to be a reasonable attorney fee. Since leases are written by landlords, they usually don’t contain provisions allowing the tenant to recover attorney fees. Thus, if you sue the landlord, the lease usually won’t allow you to add attorney fees to the amount you win. On the other hand, if your rental situation is covered by the Virginia Residential Landlord and Tenant Act and you are suing your landlord it may be possible in certain situations to recover reasonable attorney fees.
Most college students usually don’t have a sufficient income to cover their rent payments. If the landlord is forced to sue a college student for unpaid rent or damages, the student usually won’t have wages to garnish or assets to seize. This makes getting paid rather difficult for the landlord. For this reason, most landlords renting to students will require that in addition to the student signing the lease, someone, designated as a “guarantor”, also signs it. Most commonly the guarantors are the student’s parents. The landlord will usually accept as a guarantor someone who is gainfully employed and have a somewhat good credit history.
When a guarantor signs a guaranty, he guarantees that the principal’s obligations to the creditor will be fulfilled. In a rental situation, the principal is the tenant and the creditor is the landlord. The guarantor essentially promises that all monies owed by the tenant to the landlord will be paid.
SUBLEASES, ASSIGNMENTS, NOVATIONS, RE-RENTALS, AND ROOMMATE CHANGES
When you lease an apartment or house from the owner, you obtain a property interest in that apartment or house. You don’t get all of the property rights of the owner, only some of them. For example, you can’t sell or mortgage the property, but you can live there and prevent others from living there (assuming you have no co-tenants and aren’t on an “individual lease”).
Unless your lease prevents you from doing so, you can sublease or assign your interest in the premises to someone else. If you transfer your interests for only part of your remaining term, it is called a sublease. If you transfer your interests for all of the remaining term of your lease, it is called an assignment. Just like a lease, both types of transfer should be done in writing. If you sublease your interest to a sublessee (or sub-tenant), you become a (sub)landlord to the sublessee and legally stand between the sublessee and your landlord. If, instead, you assign your interest (to an assignee), you create a direct relationship between your assignee and landlord. The assignee pays rent directly to the landlord and the two may sue each other if either one breaches the lease. However, this doesn’t let the original tenant completely off the hook. A landlord may still sue the original tenant (the assignor) for rent if the assignee fails to pay.
If a tenant who has assigned his interest wishes to avoid his liability for rent not paid by the assignee, he must get a release from the landlord. If he does this at the same time as he makes the assignment, the entire process is known as a novation. This is usually what a re-rental is; however, the term “re-rental” is not a legal term, it’s just a term of convenience, and anyone involved in a re-rental should be sure that it really is a novation before agreeing to it. The phrase “roommate change” is another non-legal term that might be used to denote a novation. Again, make sure that’s what it really is before agreeing to it. Even with assignments and subleases, don’t rely on the title of the piece of paper you’re signing. It’s the actual terms of the agreement that decide what you’re doing, not the name that the parties choose to call it.
Landlords sometimes offer what they call an “Individual Lease” to tenants. For example, the landlord of a four-bedroom apartment might sign separate individual leases with each of four tenants, giving each tenant the exclusive right to use one bedroom and a joint right with the other tenants to use the common areas of the apartment. Generally, each lease will make that lease’s tenant jointly and severally liable for damages to only the common areas of the apartment. The tenant would be individually liable for her own rent and damages to her own bedroom, but wouldn’t be liable for the rent of the other tenants or any damages they do to their bedrooms. This significantly lowers each tenant’s potential liability for breaches by the other tenants; however,each tenant will usually pay more in rent than she would pay in a normal rental situation.
One drawback to individual leases (unless the lease contains a clause to the contrary) is that tenants don’t have any control over who their roommates are. If you and three friends sign individual leases for a four-bedroom apartment and one of your friends decides not to return to school in the Fall, the landlord might find a substitute tenant to take your friend’s place or your friend might sublease to someone else. You would have no control over who moves in or even what gender that person is (unless your lease says otherwise). If your potential landlord tells you not to worry, that he’d never put someone of the other gender in your apartment, make sure it says so in the lease.
Another problem to look out for is a landlord who doesn’t know how to write an individual lease. Be sure that the leases of the other tenants explicitly state that they are individual leases and that they are for only one bedroom and joint use of the common areas in the unit. Make sure that your lease limits your liability to only your share of the rent and damages to your bedroom and the common areas. Some inexperienced landlords have use generic leases as individual leases without tailoring them to the situation. This results in landlords renting the entire apartment (as a whole) to each tenant and holding each tenant jointly and severally liable for the other tenants’ rents and damages. Read everything carefully, and if you are not sure what it means, schedule an appointment with the SLS attorney before you sign it!