Must-do’s when renting to subtenant

Rent it Right

Janet Portman
Inman News™

Q: My three roommates and I rented a house for the year. One roommate left for the summer and sublet his room to a friend, Max. Max has not paid his share of the rent, and we want to evict him. Can we do this? –Terry B.

A: It’s a shame that your traveling roommate didn’t set up the sublet in a way that would have protected you. The best way to handle these arrangements is for the original tenant to continue to be responsible for his share of the rent. The subtenant pays his rent to the original tenant, who in turn pays it to you. That way, the absent tenant bears the risk that the sub won’t come through, which is as it should be. After all, you’re not the ones who decided to leave. If anyone has to deal with a defaulting replacement, it should be the tenant who put him there in the first place.

But alas, it sounds like this is not how you set things up when Max moved in. Now, you’ve definitely got a problem.

First, you and the other roommates (and the absent one, if you can get to him) will have to come up with the entire rent or risk termination for nonpayment. The landlord doesn’t care who pays, or in what proportion; all he cares about is getting a full month’s rent when it’s due. Your problems with roommates who won’t pay their shares, or subtenants who won’t pay on behalf of absent roommates, are your problems alone.

Actually, however, you may have another issue lurking below the surface: Does the landlord know about this sublet and did he approve of it? Most leases require tenants to obtain their landlord’s consent before subletting, and failure to do so can be grounds for termination. If your landlord was not consulted and finds out about the sublet, he may be annoyed enough to terminate the tenancy because of Max’s unauthorized occupancy. But if you got permission — or the landlord doesn’t care — you may have dodged this bullet.

Now, what to do with freeloading Max? If he is a subtenant, then the original four tenants are his landlords — technically, you’re all sublandlords. And theoretically, because the original tenants have a contractual relationship with the subtenant, you also have the legal power to terminate and evict.

Your first step would be to properly terminate his subtenancy for nonpayment of rent, and then file for eviction if he doesn’t move. But practically speaking, by the time you accomplish all of this, the summer will be long over and your original roommate will have returned, expecting to get his room back.

Perhaps the better course is to try to work things out so that Max pays some or all of his rent eventually. Failing that, it’s only fair for the absent roommate to absorb this debt and not expect the three of you to cover it.

In the future, make sure that you thoroughly check out any replacement. The roommate who proposes him should vouch not only for his acceptable social habits, but for his financial steadiness as well.

Here’s a tip: Tenants regularly put up one or more months’ rent in advance, as a deposit, when moving in. It’s a good idea to ask for a deposit from a replacement as well, even though the subtenancy may be for just a few months. That way, you have some protection if the replacement flakes on the rent or causes damage.

Q: My landlord’s association has given us a "crime-free lease addendum" that they suggest we use. It tells tenants that illegal activities on the property, by tenants or guests, will result in termination of their tenancy.

My lawyer says this is fine; in my state, these activities already qualify as lease-ending events, and I could terminate without this addendum. He says that the main function of the addendum is to scare off anyone who might be planning on, say, running a meth lab.

I didn’t have a chance to ask about this part, though, which I don’t understand: "Resident authorizes landlord to use police reports against resident for any such violations as direct evidence, and/or as business records as a hearsay exception, in any eviction proceeding." What’s going on here? –Tim A.

A: Slippery lease-writing is what’s going on here, in an effort to stack the legal deck against tenants. Your association’s clause tries to force tenants to give up the legal right to challenge evidence presented against them in any future court proceeding. I don’t think it will fly.

First, a bit of background. A "crime-free lease addendum" is becoming an increasingly popular way to scare off potential problem tenants, just as your lawyer explained. It puts tenants on notice that illegal activity on the property will not be tolerated and will result in eviction. The idea for such an addendum surfaced in Mesa, Ariz., in the mid-1990s, and has quickly spread.

As you were told, criminal behavior already provides the necessary legal grounds to end a tenancy in every state, whether or not the lease explicitly says so. Landlords who don’t use a crime-free addendum will have just as strong a case when they evict their tenants for illegal activity as landlords who use one. In practice, though, few tenants who really are running prostitution operations or meth labs stay and fight the eviction; once they’re discovered, they usually do the opposite, decamping in the middle of the night and leaving an unholy mess behind.

The part of the lease you’re wondering about is a lawyer’s attempt to make it quick and easy to evict a tenant who has decided to stay and fight an eviction based on illegal activity. Among other things, the clause tries to rewrite one of the basic rules of evidence, called the hearsay rule. Whether a judge would go along with this is doubtful, however.

The hearsay rule requires people to testify only to what they saw or heard, not to what they were told by someone else. For example, if the question was whether a car ran a red light, I would be allowed to testify, "I saw the car run the red light." But in most situations, a judge would stop me from testifying, "My daughter told me that the car ran the light." The court would instead require my daughter to take the stand, so that the lawyers in the case could question her about where she was, how well she could see the car, what else she saw, and so on. Obviously, if the court let me offer her testimony, there’s no way the lawyers could examine or challenge her statement and her credibility.

Your lease addendum tries to circumvent this rule. A police report includes the officer’s notes about what people told him. Police and prosecutors use this information to decide whether a crime has been committed and whether they should investigate further. But once the case goes to court, the report cannot take the place of actual testimony from the people involved (there are exceptions, but this is the general rule). If the statements in the police report could be admitted as fact, that would rob the defense of the opportunity to question the officer and the witnesses to the alleged crime, which would make the case a slam dunk for the prosecution.

I doubt that a judge would uphold a tenant’s agreement to put the hearsay rule aside like this. While it is true that some legal proceedings relax certain evidence rules, those variations (seen in mediation and some arbitrations) have been considered by the courts and allowed. People who take part in these proceedings have been advised of the changes beforehand, and presumably have made an informed decision to play by a different set of rules.

But this addendum is a different creature. You can be sure that most tenants, like you, do not understand its import. They also probably have no real opportunity to negotiate it. These two factors may make it a "contract of adhesion," which most courts will not enforce, particularly when it benefits only the party who drafted the contract and who stands to benefit from it.

Janet Portman is an attorney and managing editor at Nolo. She specializes in landlord/tenant law and is co-author of "Every Landlord’s Legal Guide" and "Every Tenant’s Legal Guide." She can be reached at

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