Never Remove Co-Tenants from an Existing Lease

Posted by wasserman

About two years ago, I rented a 2-bedroom apartment to two roommates.  One tenant has just notified me that she is getting married and moving out.  The remaining tenant would like the lease changed to her name only.  Is that advised?

The short answer is “no,” that is not advised.  There is a general misconception amongst landlords and tenants that a lease no longer applies to someone that has moved out.  Indeed, many tenants routinely contact their managers requesting to be removed from the lease because they are vacating.  Often landlords will agree to remove departing co-tenants.  This author believes that the landlord is not required to remove a departing co-tenant and, under most circumstances, should not do so.

A lease agreement is like any other contract.  In a general sense, the lease creates an obligation to pay rent and, in exchange, the landlord is required to provide habitable housing.  Most lease agreements do not extinguish a tenant’s financial obligation to the owner simply because one tenant decides to vacate but leaves behind other co-tenants.  The 2017 SFAA Residential Tenancy Agreement addresses this point directly:

“Each person who signs this Agreement, whether or not said person is or remains in possession of the Premises, shall be jointly and severally responsible and liable for the full performance of each and every obligation of this Agreement, including, but not limited to, the payment of all rent due and the payment of costs to remedy damages to the Premises, regardless of whether such damages were caused by Tenant, Tenant’s guests, or Tenant’s invitees. These joint and several liabilities apply for as long as any one of the Tenants remains in possession.”

Taking a departing co-tenant off of the lease will essentially extinguish that co-tenant’s financial liability to you if the lease is later breached.  For example, you rent to tenants A and B.  A has a lucrative job but B does not. A leaves and is removed from the lease.  Months go by and B fails to pay rent.  The landlord, by removing B, has effectively foreclosed the ability to obtain a judgment against A and instead can only collect from the less financially well off B.  Conversely, if A were still on the lease, A would remain jointly liable for the judgment and, to that end, would be motivated to help you remove B.

In addition, removing a co-tenant from the lease likely obligates you to return that person’s portion of the security deposit.  Normally, no part of the deposit should be returned until the apartment is completely vacated.  As such, departing co-tenants are incentivized to remove all persons, including subtenants, when they decide to depart.  By removing a co-tenant and returning part of the deposit, you are probably unable to force the remaining co-tenant to replenish the deposit amount and thus you will be under secured for the remainder of the tenancy.

Lastly, a departed co-tenant could always come back during the tenancy.  This author has seen that occur many times.  If the now re-emerged co-tenant returns, possession will be resumed but you will not be able to hold this occupant financially accountable if you amended the lease.  So, for all of these reasons, do not remove co-tenants from the lease even if they give notice of their departure and request or demand to be extracted.

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