Kim and Tim are in love. They decide to move in to a new place together, and they both sign the lease. Kim and Tim fall out of love, and Kim moves out. Tim stays living in the apartment for three years, and then he falls behind on his rent payments. Three years after Kim moved out, she gets sued by the landlord for $5,000 in unpaid rent. She doesn’t think this is fair. She hasn’t lived in the property for three years and when she left, the rent was paid up in full. Why should she have to be responsible for an old boyfriend’s debt? He’s the one that didn’t pay the rent, not her.
So why is Kim responsible for paying the unpaid rent? Because she signed a lease, and the lease contains a clause stating that the tenants are joint and severally liable for any debts arising from the lease. Joint and several liability essentially means that the landlord can collect the debt from all of the tenants (joint), or from one tenant alone (several). In other words, both tenants are individually responsible for the total amount of the debt. In Tim and Kim’s case, Tim doesn’t have any money, so instead of enforcing the debt against Tim, the landlord chooses to enforce the debt against Kim. FAQ: Does each roommate need to sign the lease?
What does a joint and several liability clause look like? There are several forms that this kind of clause can take, for example: When two or more persons comprise the Tenant for the purpose of this Agreement, the Landlord may collect the rents due to the Landlord pursuant to this Agreement from any one, some or all of them. Each tenant is equally responsible for the payment of the rent. The obligations of the Tenant hereunder are joint and several.
FAQ: One of my roommates is moving out and we don’t have anyone new to move in right away. Is he still responsible for his share of the rent?A tenant could always ask a landlord to remove this kind of term from the lease. Chances are, however, that a landlord will refuse to do so, so the tenant will be stuck with this clause. And sometimes it won’t even matter if this kind of clause is there or not, because some provinces include joint and several liability in the renting law. In other words, some laws say that if the tenants move into the same property at the same time and both sign the same lease, then the tenants are automatically joint and severally liable for debts arising from the lease.
There are few things that Kim might have been able to do to avoid this situation.
• She could have found out about the law in her province.
Some provinces allow one tenant to terminate a periodic lease for all of the other tenants. There is a policy in British Columbia, for example, that a co-tenant can give written notice to end the lease, and that notice will be effective to terminate the lease for all of the co-tenants living in the property, even if the other co-tenants have not signed the notice.
• She could have given written notice anyway.
Even in provinces that do not allow for one tenant to give notice to terminate the lease on behalf of all of the tenants, it might still have been a good idea for Kim to have provided proper written notice to the landlord. There is an Alberta case that suggests that if a tenant provides proper written notice to the landlord to terminate the lease, then the tenant may no longer be responsible to pay the rent after the notice period. The case was a bit different, in that the lease was originally for a fixed term and then lapsed into a periodic tenancy, but the judge essentially said that if tenants are joint and severally liable to pay the rent, then the tenants remain responsible for the debt even though the tenancy changed from fixed term to periodic. A tenant might be able to be released from this obligation to pay by providing proper written notice of termination to the landlord.
• She could have tried to get a release from the landlord.
Kim could have let the landlord know that she was moving to see if the landlord would have approved her removal from the lease. In some provinces, in order to remove a tenant from a lease, all parties to the lease must agree that the tenant can be released. If Kim had had some kind of proof that the landlord had consented to release her, even if Tim did not consent, she might have been able to defend against the landlord’s claim for the unpaid rent.
• She could have talked to the landlord.
At the very least, Kim could have talked to the landlord. Kim might have found that her landlord was sympathetic if Kim had actually taken steps to talk about leaving. It’s the landlord who ultimately makes the decision about who they are going to sue for unpaid rent, so the landlord could have chosen not to sue Kim at all.
The Canada Mortgage and Housing Corporation has information about the renting laws in each province. There are fact sheets about the law in each province, and those sheets contain links to organizations that can help tenants who find themselves in a dispute with their landlord over debt.
For more information on Tenant Responsibilities visit: https://www.landlordandtenant.org/roommates-and-subletting/
This column was produced with the generous support of the Alberta Real Estate Foundation.