Joint and several liability (for residential leases) means that each tenant is jointly responsible for the entire rent amount and for any damages as well as being separately responsible.
What this means for tenants is that the entire rent can be collected from just one tenant if for some reason the other tenants were to leave and were no longer contactable. This means that even if one tenant is paying $400 a month for a tiny room and the other two are paying $1200 each if they default the landlord has the right to pursue just the one tenant for the full rent amount of $2800. Each tenant in this way is liable to pay the full rent.
Secondly, it means that even innocent tenants are liable to pay for the damages of one. For example, one roommate decides to get a dog that proceeds to damage the property – all tenants have shared responsibility and liability for damages.
“Joint and several liability” is where two or more persons are liable in respect of the same liability.
Joint and several liability means a claimant may pursue an obligation against just one party for full recompense. It then becomes the defendant’s responsibility to sort out their respective proportions of liability and payment.
This means that the claimant only has to pursue one tenant instead of bringing separate cases to court against individuals and it becomes the defendant’s responsibility to ensure the other tenants share the responsibility.
This obligation is normally spelled out in a lease clause in leases that are signed by two or more tenants.
Forcing joint and several liability with your tenants will allow you to view them as a single entity.
This makes life easier and reduces risk if you have multiple tenants in a single house. It is worth stipulating joint and several liability in a clause in your lease.
There are many real-world situations where this stipulation will come in handy:
Let us say you are renting a property with 4 bedrooms with four different tenants. At some point during their lease, for whatever reason, two of the tenants move out without telling you. The several and liability clause means that the remaining two tenants remain responsible for the whole of the rent not just their portions. It then becomes their responsibility to find two new tenants for those rooms or pay the full rent between them.
The second scenario involves all your tenants deciding to up and leave. In this scenario, you only need to find and track down one of the four tenants. This clause allows you to pursue that one tenant for the full amount owed.
The alternative would be tracking down all four of them and pursuing individual cases against each to get rent owed. The time and expense could be astronomical.
This clause also lets you pursue a single tenant for any additional debt owed. For example, if the deposit doesn’t cover the full cost of damages after they move out.
You are also allowed to use the security deposit to make repairs, even if the main culprit didn’t contribute any money to the original deposit.
When giving out notices (like a notice that you will be coming over to make repairs) you only have to give it to one of the tenants as supposed to all tenants individually. This counts as sufficient notice to all the tenants.
This clause allows you to assume that it is the tenant’s responsibility to effectively communicate any of your messages to one another. However, we would always recommend notifying all tenants individually anyway to ensure a frictionless tenancy.
In order to protect yourself, you should have a clause in your lease that forces “joint and several liability” from your tenants. Here is an example of what that clause might look like:
MULTIPLE TENANTS OR OCCUPANTS. Each Tenant(s) is jointly and severally liable for all Lease Agreement obligations. If any Tenant(s), guests, or occupant violates the Lease Agreement, all Tenant(s) are considered to have violated the Lease Agreement. Landlord’s requests and notices to any one Tenant(s) constitute notice to all Tenant(s) and occupants. Notices and requests from any one Tenant(s) or occupant (including repair requests and entry permissions) constitute notice from all Tenant(s). In eviction suits, each Tenant(s) is considered the agent of all other Tenants in the Premise for service of process. A notice to vacate must be signed by all Tenant(s) or it will not be considered valid.
There are exceptions to the above-stated rules which are dependent on state laws. You will want to research your own state laws thoroughly before including a joint and several liability clauses in your lease so you understand fully the legal implications. If you have any uncertainties you should talk with a licensed legal professional.
A few examples of exceptions include California, Ohio, New York, Iowa, Louisiana, and Mississippi. The states of California and Ohio have only retained joint and several liability for economic damages such as medical expenses and lost wages, not for rent. Illinois has abolished joint and several liability for defendants less than 25% responsible of the whole while Iowa and New York have abolished joint and several liability for defendant parties less than 50% at fault. Finally, in the states, Louisiana and Mississippi joint and several liability claims only allow the plaintiff to recover 50% of their damages.
Because of the various complications on a state and local level, it is recommended to consult a legal professional when drafting up your lease so that you understand the limitations of the law and your lease remains in compliance.
Ben is an author and real estate enthusiast. His interest in all things entrepreneurial has led him to work with real estate professionals all over the world, distilling their knowledge into articles and Ebooks.
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