I need to get 3rd flatmate on the lease, owner will only put dwn 2 ppl

April 19, 2016 4:38 PM

Hi there! I know you are not my lawyer- but. Myself and another person are going to be renting a two bedroom two bath flat. I met some other tenants in the building and they are renting the den as a bedroom, and a real estate agent even mentioned this option to me. The owner only wants two people on the lease, he doesn't want to feel like he is renting a "group" apartment. A friend said her Dad (an atty) helped her draw up a side contract on the side when she was in a similar situation. However, since I am not the owner of the property what rights would I have? I can't sublease the den to the third roommate because I do not own it. Any thoughts? The third roommate is willing to provide us with her ss#. thanks!
posted by TRUELOTUS to Law & Government (19 answers total)

Clarify: does the landlord only want to lease to two people, or does he only want two people living in the apartment?
posted by praemunire at 4:56 PM on April 19, 2016

Response by poster: landlord only want to lease to two people. We are fine to have another person live with us.
posted by TRUELOTUS at 5:11 PM on April 19, 2016

Response by poster: I asked the agent, and he said a third roommate is fine. the issue is the lease and our liability.
posted by TRUELOTUS at 5:12 PM on April 19, 2016

You were updating while I was typing.

The owner is the owner. The agent is just trying to close the deal and make their commission. Real estate agents are well known for lying, so I mean, I can see why you might be disappointed. The answer is still no, a 3rd person will not be possible. Your does not want to amend your lease, which is a legally binding contract that you signed.

I hope that clears things up. I'm sorry you were mislead by the agent.
posted by jbenben at 5:17 PM on April 19, 2016 [7 favorites]

Landlords have their own reasons for limiting the number of people in an apartment, and the lease you sign is a contract between yourself and the owner, and will certainly state how many people you are allowed to have there. You can't unilaterally decide to not abide by your lease agreement, unless you want to be evicted.

The agent has nothing to do with it except that she is apparently making false representations to you about what you can do in this apartment. What it says in the lease is what you can do.
posted by fingersandtoes at 5:21 PM on April 19, 2016 [3 favorites]

So, I wouldn't encourage it, but I'm not going to lie, this kind of thing does get done under the table from time to time in certain tight housing markets. However, you need to realize that if the owner ever finds out, at best the third tenant is going to have to move out on extremely short notice. At worst, you find your entire group evicted, and possibly your security deposit not returned (that wouldn't be legitimate, but it's been known to happen).

Whether you could, legally, enforce the terms of an unauthorized sublease would depend on the jurisdiction. I think it's more important to realize that, as a practical matter, it would be very hard to enforce those terms without the fracas somehow coming to the landlord's attention, returning you to the situation in paragraph 1. So: it may be helpful to get expectations down in writing, but really this would be a high-risk situation and you pretty much have to hope that nothing goes wrong. If you must do it, try to bring in an actual friend you trust rather than a rando.
posted by praemunire at 5:30 PM on April 19, 2016 [1 favorite]

I am a bit perplexed about why other answers are equating only having two people listed on the lease with only being permitted to have two tenants. Having people reside in an apartment who are not on a lease can be a perfectly legal arrangement . For example, I was the lone leaseholder for a 3-bedroom apartment for several years. I was taking on sole responsibility for paying rent to the landlord, but it was understood that I would lease out the other rooms to others.

The (separate) question is whether you will be permitted to sublet(I suppose this is what your friend means when he or she suggests a side contract.) . Not owning something doesn't mean you can't sublease. In fact, if you look up the term sub-lease you will find it's, by definition, something you do as the non-owner. Take a look at the lease, if you have it yet. What does it say? Ask the landlord if you need clarification. It is not uncommon for a landlord to not want to have a big group of leaseholders but to be permissive of side arrangements with others living there. This post discusses the way this might work.
posted by reren at 5:45 PM on April 19, 2016 [2 favorites]

I've been in two houses now where there were only two people on the lease but the owners were perfectly aware that there was one other person living there (we cleared it with them when signing the lease). We had zero issues - in fact, both sets of owners seemed happier to deal with fewer people. So I strongly disagree that you should just assume the agent is lying to you - you should contact the owners directly and ask them.
posted by randomnity at 5:47 PM on April 19, 2016

I think this kind of deal (allowing a tenant to sublet a room in an apartment) is a bad idea for landlords in most jurisdictions, because the subletting tenant generally has rights whether they are on the lease or not. But lots of landlords prefer it, for some reason; I have been the only person on the lease and sublet to a roommate my landlords absolutely knew about. They had had a bad experience with roommates in the past and wanted to avoid that problem in the future.

I feel like it's often a sign of people who don't actually understand the landlording business (in my case the landlords would have been better-protected by having everyone on the lease and making us "jointly and severally" responsible for the rent) and may try to nickel and dime you about other things, but if the apartment has other attractions it might be worth it.
posted by mskyle at 6:06 PM on April 19, 2016

I am a bit perplexed about why other answers are equating only having two people listed on the lease with only being permitted to have two tenants.

Landlord saying he "doesn't want to feel like he is renting a 'group' apartment" sounds a lot more like "I only want two residents" than "I only want two people on the lease." If the landlord didn't want multiple tenants but was okay with residents who aren't his direct tenants, why didn't he say so then?

It's disadvantageous to the landlord to have people living in the apartment but not on the lease; in most U.S. jurisdictions, a subtenant's responsibility will run only to the tenant and not to the landlord. I have actually been the sole person on a lease with an expectation of renting out the other bedroom, but I had been friends with the landlord for some time and had a steady income that could cover the whole rent.
posted by praemunire at 6:13 PM on April 19, 2016 [1 favorite]

IAALL, albeit IANYLL. What does the lease say about subletting? If the lease says, "hey, go ahead and sublet," then that's one thing; if it doesn't, then that's another. (It also helps to know what local code says about the number of unrelated adults living in a property.) You absolutely need to tell the LL that person is there, though, whatever you do, or else you may become Sad very quickly when they find out.
posted by thomas j wise at 6:32 PM on April 19, 2016 [1 favorite]

they are renting the den as a bedroom

Does the den qualify as a bedroom per the building codes?
posted by shiny blue object at 6:39 PM on April 19, 2016 [3 favorites]

Get permission in writing from the Owner/Landlord for permission to sublet to a third roommate. Then draw up an agreement that looks like a lease.

Know what your obligations as landlords will be in case this goes tits-up. If you take a deposit, keep it separate from the deposit you give the landlord, because you will be required to give it back to the roommate when they leave. You may also have to evict the roommate...so stay on top of those kinds of things.
posted by Ruthless Bunny at 6:40 PM on April 19, 2016 [1 favorite]

Only your landlord knows the answer to this question. It is totally up to him whether or not it is OK for you to have another resident in the apartment who is not on the lease. Don't trust your agent, he has a conflict of interest in that he wants to close the deal so he can get paid, and it's not him who'll be getting evicted if it goes south later. Don't trust us here, we have no way of knowing what your landlord is cool with. Some landlords are OK with this sort of thing and some aren't, for lots lf different reasons. If you don't want to risk getting screwed later, you need to ask your landlord.

The social security number thing is irrelevant.
posted by Anticipation Of A New Lover's Arrival, The at 6:54 PM on April 19, 2016 [6 favorites]

In NYC, likely San Francisco and other places with tight housing markets, it is common for a landlord to only have one or two leaseholders, but allow leaseholders to sub-lease to roommates.

This has several benefits for a landlord who makes the leaseholder do the renting, so doesn't have to pay for a rental agent, and doesn't have to take the same care of rooms passed between roommates, rather than rental agents. It's also easier for the landlord to charge a higher amount overall in these cases, which can expand the overall applicant pool, without scaring off individuals who otherwise might not be able to secure a lease on their own, but may consider the cost of a shared place relatively economical.

It's also easier for landlords to have just one or two people to go after in the event of a breach, rather than a group, with the inevitable confusion of holding multiple people responsible for a problem simultaneously, likely none or few taking responsibility, multiple lawyers and so on. So, for example, if the leaseholder and subleaseholder start a fire, the landlord goes after the leaseholder for compensation, and the leaseholder will have to go after the subleaseholder if they want compensation too. Seen that way, it's obviously easier for the landlord to deal with just one person, rather than two.

The flip side, of course, is the sub-leaseholder exchanges few legal rights, little real control over the shared space, barring what the lease-holder allocates, and usually no lease of their own for no long-term commitments, and an informal rental process.
posted by Violet Blue at 8:12 PM on April 19, 2016

It's also easier for landlords to have just one or two people to go after in the event of a breach, rather than a group, with the inevitable confusion of holding multiple people responsible for a problem simultaneously, likely none or few taking responsibility, multiple lawyers and so on.

It's called joint and several liability. If the rent is jointly and severally owed by A, B, and C, the landlord may pursue any or all of them for the entire amount. A and C vanish, the landlord can recover the entire rent from B. Poor B can then go after A and C for contribution, but that's among themselves; the landlord doesn't have to worry about it. (And if someone sets fire to your property, you can go after them regardless of whether they're a tenant, a subtenant, or a random passer-by.) A landlord who is too dim to work out that it is usually better to have multiple people on the hook for any liabilities than just one needs to give his property to me, for safekeeping. Yes. Safekeeping.

I think these arrangements--when the landlord is even aware of them, which they often are not--arise out of laziness and inertia rather than canny business practice. There is literally no reason why a landlord could not allow a tenant to do the work of finding a replacement for a previous roommate and then have the replacement be added to the lease, beyond the few bucks it costs to reproduce the prior lease with a replacement name on it. It would be especially weird to actively turn down an offer to add a third name to the lease (as opposed to passively acquiescing in a scheme to bring in a subtenant later). But people can be idiosyncratic, I suppose.
posted by praemunire at 9:28 PM on April 19, 2016 [2 favorites]

Best answer: Check your state laws regarding subletting. Where I live, it is illegal for landlords to prevent sublets.
posted by congen at 9:59 PM on April 19, 2016

Best answer: If the landlord has basically said that he won't go after you for a sublet, then I'd take him at his word on that. There's nothing illegal about sleeping in a den as long as you aren't selling it or advertising it as a bedroom (why is it defined as a den? No window? That's a fire hazard. No closet? Eh, whatever.). Realistically, they're still advertised as bedrooms ALL THE TIME.

Just remember that subletters do still have certain legal rights, and that as the subletee you bear certain liabilities (what if the subletter caused damage?). That's why I'd have some sort of written subletting contract, so that that's all defined up-front.

Anecdotally, I've lived in 4 sublets in the last 1.5 years and I've never had a written agreement (aside from emails discussing the dates). I only ever made a deposit at one place. I never paid last month's rent or an application fee or many of the other things that go hand-in-hand with a lease. It may not be smart, but it's not unusual.
posted by R a c h e l at 6:17 AM on April 21, 2016

Shiny blue object makes a good point about whether or not the room being rented is up to code for a bedroom. If it is not, and the landlord knowingly allows someone to use it as such, they're opening the door to potential liability issues if something were to happen (like a fire where the roommate was harmed because the room lacked improper egress or alarms). They could be held liabale in either situation - if the third roommate was an actual tenant on the lease or if they consented to a sublease. You could also be liable if there was a sublease.

If you are going to go ahead with a sublease agreement, first make sure the den qualifies as a legitimate bedroom and then proceed under the sublease provisions of your lease.
posted by youngergirl44 at 10:31 PM on April 24, 2016