Relationship and Legal Issues When You Move in With Your Significant Other

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It’s a month before graduation and you have just found out that both you and your college BF/GF have landed jobs in the same city. Now the big question is, should you look for an apartment together? And if you do, what are the relationship and legal issue to consider before you take this big step? Cohabiting (the formal term) is more common than ever. According to research by the CDC, close 75 percent of women under 30 say they have lived with a partner outside of marriage, so you certainly are not alone dealing with the question.

We were recently interviewed by U.S. News and World Report about the topic and we’ve covered it before, but the issue is timely enough to merit a fresh post. To review the related legal issues we brought in Donna Petrucelli, an attorney and broker with Douglas Elliman, in NYC, while our blogger, Alex Starace, will talk about the relationship aspects.

What should you watch for when signing a lease?

Alex: If the two of you are in a studio or one-bedroom and end up breaking up, it’s not as simple as just swapping in a new roommate. So, be prepared. Before you sign the lease, see what the terms are for breaking it. Some management companies will allow it if you pay a penalty and/or find a new renter. Also, make sure both of your names are on the lease.

Donna: Yes, usually your legal rights are very limited if your name is not on the lease. If, for example, the person whose name is on the lease moves out, or the lease terminates, the landlord does not have to allow the roommate whose name was not on the lease to remain in the residence.

However, in some situations, you could also use this to your advantage: If your name is not on the lease, you can move out and the landlord cannot go after you for your share of the rent.

Alex: If you live together in a bigger apartment, where each resident could plausibly have his or her own room, make sure there’s language that allows you to swap roommates. Some management companies will want to personally vet the new roommate, but that’s a good thing — you’ll know you’re getting someone who can pay. And most companies will allow you to make such a switch.

Donna: Leases usually have a clause in them that makes each tenant/roommate “jointly and severally” liable for the rent. That means that each tenant named on the lease is responsible for paying not only his/her share of the rent, but the entire rent if the other roommate fails to pays his/her share. To minimize your liability, you would want to have a clause that states you are liable for only your share of the rent — this is referred to as “several liability” or “individual liability.”

What happens, then, if you actually break up?

Alex: It’s emotionally difficult. I think that’s the hardest part — you’ve shared a space together, and now what should be your home feels poisonous and tainted.

Donna: You need to read the lease to see what it says about early termination of the lease. However, in most cases, the tenants will probably be “jointly and severally liable” for the lease payments and, therefore, each party would still be liable for the full amount of the lease payments until the lease term expires. In this case, the landlord can sue one or both of the tenants for the full amount remaining on the lease.

Alex: I would say, though, that getting sued is unlikely if you’re at all conscious of your legal responsibilities. The mechanics of what you do in the event of a break-up depend a lot on the specifics of each case — it’s a headache, and it’s difficult to deal with, but the actual break-up is (I would hope) the real heartache.

There are tons of practical options, and what you can do depends on what your lease says and how forgiving your landlord is. I’ve known couples where one of them finds an incredibly small studio, and then they add the price of the studio and the shared apartment and divide by two, and each pay that much per month. It’s a good way for both of you to get your separate space until the lease expires. Or, you could see about subletting your place. Or, if you have a big enough space, you can find a new roommate and one of you move out. It just depends on the case.

Should You Have a Formal Roommate Agreement?

Donna: A properly drafted and executed roommate agreement is a great idea, especially if you are not named on the lease. The following, at a minimum, should be included in the roommate agreement:

  • How much rent each person will pay?
  • Who’s responsible for the security deposit?
  • Who’s responsible for paying the landlord?
  • Who’s responsible for paying the utilities?
  • How long the agreement will be in effect
  • Who stays in the apartment should a break-up occur?

You might also want to include the following:

  • Whether you can have overnight guests and, if so, how often?
  • Who does what household chores and how often?
  • Will food be shared by the roommates and, if so, who buys the food?
  • Who occupies which bedrooms?
  • What are circumstances under which someone can move out or is asked to move out?
  • How much notice needs to be given?
  • Does the person who is moving out have to find a replacement roommate?

Alex: To me, if one or both of you feel you need a “roommate pre-nup” and worry about seeing a one-year lease through to its end, I would take some time to reassess whether the two of you should actually be moving in together. This is not to say that a couple that has no worries about their relationship won’t blunder into a disaster within a year — but extricating oneself is relatively easy.

That said, there are a couple things I’d consider putting in writing: If the two of you bought a pet together, who gets to keep it? The same with major furniture purchased together. Decide upfront who’d get to keep the HDTV and the fancy couch you both bought — and write down how much they cost, so that if one of you needs to reimburse the other, you have the amounts handy.

Would a roommate agreement be legally binding?

Donna: If the roommate agreement conforms to the requirements for a valid contract in your state, then the roommate agreement is a contract that is legally binding, but there are certain provisions that a judge might not enforce (e.g., it’s unlikely that a judge would force a roommate to buy groceries, clean the apartment, etc.) The judge will enforce financial obligations of the roommates.

Alex: To go along with that, particularly in reference to the unenforceable clauses, the reason you have it in writing is so that you have a mutual understanding of how various issues will be handled if things don’t work out. It makes it more real, and makes it harder for one party to go back on their word.

Donna: I have one more legal warning: texting and emailing are very common forms of communication today and people tend to be very careless about what they write. You need to remember that everything you put in a text message or email or post on your Facebook account or Twitter account can be used either to help you or hurt you if you have to go to court.

How should you keep track of your expenses?

Alex: Generally speaking, keeping good financial records is a good idea — though I don’t know that this is something unique to couples.

Donna: Any expenses the parties have agreed to split should be documented. Best way would be to save the original bills and receipts. When people are cohabiting as a couple, they tend to get sloppy about expenses. That can be very problematic if the couple splits up and wants to recover an expense.

Alex: Agreed. If you get in a fight and you claim you’re paying way more than your fair share, it certainly is better to be able to consult your records and see that, in fact, you’ve been paying about 60 percent of the bills, or whatever it ends up being. And don’t forget eating out. It’s fun, it’s a great social activity, but it’s also incredibly expensive. For example, if you go out to a fancy dinner, you can end up spending, as a couple, as much as you would for a week’s worth of groceries. Is that okay with both of you? Is that how you want to spend your money? It’s worth talking about — ideally, you’ll both be on the same page with regard to how much you eat out per week and how those costs are split.

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