QMy roommate has become a flake. She lost her job a few months ago and basically moved her boyfriend into our rental without my permission. He isn't working either and has no money. Each month we would typically pay our respective 50 percent share of the rent directly to the landlord, but some months I covered a portion of her share. Since we moved in two years ago, I have consistently paid my share of the rent, but my roommate is now paying only a portion of her share. It seems she lied to me and didn't pay any of her portion of the rent last month. I have just learned that my roommate hid the fact that the landlord had served us a legal notice for non-payment. I have contacted the landlord and tried to explain the situation, but she tells me that my problems with my roommate are not legitimate excuses to not pay rent.

I was able to negotiate that if we leave immediately, the landlord will drop the legal action and we can make payments on the unpaid rent. However, my roommate and her boyfriend are refusing to leave because they do not have any money or anywhere to go. They claim that they will get a new roommate and everything will be just fine. How can I be held responsible for this mess? I am the only one who is paying my share of the rent! What happens if my roommate and her boyfriend refuse to leave? Am I still responsible if they stay and find a new roommate? What about my share of the security deposit? I want to get out of this mess as soon as possible.

Finally, how do I get my roommate to pay me for her share of past rent that she didn't pay?

AProperty manager

Griswold replies:

You and your roommate are "joint and severally" responsible for the lease and all of the obligations created by signing that legal document. This means the landlord can seek enforcement of the terms of the lease, including payment of all of the rent, from either you or your roommate. Landlords will generally go after the tenant that is more likely to make the payment of past due rent. They are not concerned about any internal agreements about the living arrangements or payment burdens.

I hate to be the bearer of bad news, but you clearly were not a good judge of character when you selected such an irresponsible roommate. Now you could very likely be left holding the bag for all of the problems she created.

I think it is important to clarify some erroneous assumptions or false impressions I note in your question.

First, there is no such thing as "my share" and "their share" of the rent or any other obligations as far as the lease or contract with the landlord is concerned. You may have an oral or written agreement between you and your roommate, but that is not relevant or binding upon your landlord. In other words, the full rent needs to be paid to the landlord in a timely manner each month regardless of any financial challenges faced by individual roommates.

Also, the receipt by your roommate of the legal notice for non-payment of rent is binding on both of you whether your roommate tells you, or chooses to hide or destroy it. This is why it is imperative that you make sure you receive a receipt from the landlord each month showing the rent has been paid in full, especially if you didn't make or at least personally observe the entire payment being made.

Next, the fact that the roommate will not leave the property means that both of you are still in possession of the rental unit. Again, while the failure of your roommate to vacate may give you some additional basis upon which you can sue your roommate, the bottom line is the landlord will be looking for the rent up until the rental unit has been completely vacated. The only way you will be able to "get off the lease" is with a written release from the landlord, who will do so only if it is in her best interest. You seem to be the more responsible party, so the landlord is not motivated to let you off the lease until she knows that your roommate, her boyfriend and the new proposed roommate meet all of the rental qualification criteria.

By the way, if the landlord is prudent, she is not going to be sending you the security deposit or "your share" of the security deposit, since the entire security deposit should run with the lease and not be accounted for or returned until the tenancy is terminated.

Thus, any arrangements for you to receive any or all of the security deposit are between you and your roommate or the new proposed roommate.

If the idea of your roommate staying and finding a new roommate doesn't work and ultimately the rental unit is vacated, remember that you are likewise responsible joint and severally for every item that the landlord finds is damaged or beyond normal wear and tear.

So, even if you personally have already vacated, you still have an interest in making sure that the residents don't destroy the property during fights among themselves or on their way out the door. This financial responsibility extends to the entire premises, so you cannot argue that the large hole in the wall of your roommate's bedroom is solely her responsibility.

All of this is in addition to your financial responsibility for the balance of the lease term. While the landlord has an affirmative duty to mitigate or minimize your damages by making reasonably diligent efforts to re-rent the property, you and your roommate remain joint and severally responsible for all rent and any reasonable costs of re-renting the property incurred by the landlord as the result of your breaching the lease.

As you have found, a poor choice of a roommate can lead to serious problems. If you happen to select an irresponsible roommate, she can leave you holding the bag financially and ruin both your credit and tenancy history.

For all these reasons, I always recommend that roommates should check each other out even more carefully than the landlord checks you out.

At this point, I strongly urge you to try as hard as you can to get your roommate and her boyfriend out of the rental unit and let the landlord re-rent the property to someone else before you end up paying even more rent and damages because of your roommate's irresponsible behavior.

Then document all of the costs and expenses incurred by you beyond your agreement to share costs, and pursue the balance owed to you, first with a demand letter and then small-claims court.

This column on issues confronting tenants and landlords is written by property manager Robert Griswold and San Diego lawyers Steven R. Kellman, director of the Tenant's Legal Center, and Ted Smith, principal in a firm representing landlords. E-mail your questions to Griswold at rgriswold.inman@retodayradio.com. Questions should be brief and cannot be answered individually.

(c) 2005 Inman News Features