A guy agrees to sublet a room in a three-bedroom apartment, where three girls normally live, for $400/mo (one girl's share of the monthly rent). When he shows up to move in, the girl is not there. He meets the landlord who says the girl was not allowed to have sublettors. But the guy can sign a lease with him for the apartment for $600/mo. The guy (it's late, he has nowhere else to go) agrees and signs the lease, paying the first $600, and is let into the apartment.
What result? Whom does the guy owe the next month's rent to? If he does not pay either the landlord or the original roommate, can either sue him? What can he do about the overcharge? Can the other roommates lock him out? Can he lock the other roommates out? Is there anyone he could or should sue now?
It would seem that he'd have a claim against the original roommate. He relied upon her promise to live in the apartment for $400/mo, and she failed to perform by not delivering him possession of the premises. On the other hand, his damages would seem to be limited to the $200 difference, since he apparently does have possession of the premises.
Or does he? Was it not trespass for the landlord to let him into the apartment? It was already in possession of the three girls (two of whom were still there), who had exclusive enjoyment of the premises. It was not in the landlord's capacity to reconvey by a second lease the premises for anyone else's exclusive enjoyment of them, since the landlord did not have possession of them. (Simply having a key or owning the surrounding building is not the same as having possession of the apartment.) But that's what the lease would seem to do - it gives this guy complete and exclusive access to the entire apartment, in conflict with the original lease which gave complete and exclusive access to the entire apartment to a different group of people.
The complicating factor, where real life merges with the law, is that everyone may be fine with this arrangement, except for the guy who's paying too much and seems to be in a legally-precarious spot. The other roommates expected and consented for him to be here, the original roommate has someone else to pay her share of the rent, and the landlord has an extra contract to make sure he gets paid. (Although this seems incredibly redundant - the other two roommates were jointly and severably liable for the entire rent, not just their individual shares. His lease with them was already a guarantee that he'd be paid. A question now would be whether they are entitled to pay less than their original rent because the guy pays his share directly to the landlord.) But because the guy has possession of the apartment, and the roommates' consent to be there, if this ever went to court, it's not clear anyone was damaged.
It's also not clear if the guy should just hold his breath and hope nothing goes wrong, or if there are affirmative steps to take to sort out the arrangement. And if so, what they should be.
Hypothetically speaking, of course...
(Don't panic, this fact pattern has nothing to do with any clients...)
My thinking is that the second lease is void. The guy should not continue to pay the landlord, and instead should pay the lesser rent to the other two roommates as the original sublease agreement had set forth. If the landlord tried to sue him for unpaid rent, he would fail because he did not have a valid lease to collect on. But I'm posting because at least one person has suggested that he should continue to pay rent to the landlord. Since he does have possession of the unit, it would somehow give the lease a presumptive validity. Personally, I would find such a result scary. It seems exceptional that the landlord would be able to have two leases, and if he were to be able to get away with it, it would mean that tenants everywhere would be (even more) vulnerable (than they already are).
Comments (4)
This is a very confusing fact pattern. I don't understand why a landlord would rent out the entire apartment for $600 if he is getting $1200 ($400 x 3) from the three roommates. The landlord sounds like an idiot. Anyway, if that's really what happened, the guy should negotiate with his roommates to collect a third of the new rent from each of them ($200 each) and pay the landlord the $600. having leased the apartment to a new tenant, what basis does the landlord have to enforce the original lease? none, in my opinion.
Posted by Lawgirl | June 2, 2005 1:07 PM
Posted on June 2, 2005 13:07
I think that the answer about what the tenant should do depends a lot on what his goals are. If his goal is to remain in the apartment, not be fighting with his current roommates (important) and landlord (less important), and not spend considerable amounts of time (and stress) in uncertain litigation, then he should pay the $600 to the landlord, and give his roomates a copy of the check each month.
Yes... the landlord's document is squirly, but the fact is that the new tenant did sign a lease, and likely has no right to the apartment under the original sublease (assuming the sublease violated a sublease provision in the original lease, which seems likely). So, if the new tenant doesn't pay the $600, it seems likely to me that he will be loose the apartment either (i) by virtue of his failure to pay rent under his lease with the landlord or (ii) by virtue of the original tenants (and hence his subtenants) being hit by enforcement of the original nosublet clause. And, even if he doesn't loose the apartment, he certainly gets tied up in unpleasantness.
Paying the $600 keeps the landlord happy, and and between the pupported sublease and the landlords purported lease to the new tenant, and the apparant acqeuence of the two other roommates, I would think the new tenant should feel pretty secure in his tenancy (who would compain-- each interested party has a document where they purported to grant tenancy, and it would be tough for them to argue that he wasn't entitled to it as a result of their own [possibly inadvertant] frauds).
The existing tenants should pay the landlord rent of either $600 or $800 depending on their aversion to risk and fighting. They are likely to choose to pay $800 (unless the new tenants push them), since they have no real skin in the game-- the purported overpayment comes from the new tenant, not them, and equitably they would have to repay any savigs to him. Unless the new tenant wants to be fighting with his roommates all year, he'll have to live with that.
While he could sue the roomate he replaced-- I doubt the stress of doing so would be worth the chance at receiving $2,400 in damages (and I don't know that a court would give him that much, since its not clear that he properly mitigated damages).
In a rent control jurisdiction, he may have more rights-- and clealy the landlord was not doing the paperwork right here-- what he wanted to do was add the new tenant to the existing lease at an increased rent, not create a second lease. However, once again, the stress of fighting with landlords and roommates, being involved in litigation, and likely (as a practical matter) haveing to move at some point, might not be worth it to your typical tenant.
Moral of the story-- don't take a sublease unless the landlord signs it.
Mark
Posted by Mark | June 2, 2005 2:38 PM
Posted on June 2, 2005 14:38
Perhaps this was to save space on a lengthy fact pattern but you don't mention whether the landlord's lease explicitly forbid subleases, or whether the landlord just decreed it when encountering the sublessee, preferring it be the case. I had a landlord in the past claim something was in the lease that was not actually there-- was the subtenant in possession of the original lease document?
Posted by rueosat | June 2, 2005 7:30 PM
Posted on June 2, 2005 19:30
The problem with paying the landlord is that if the original lease is still valid, as I understand it, the two girls left could still responsible for the lease, which is $1200 (which might be where the $600 figure comes from). I'm guessing that there is no language in the contract discussing partial rent when only one tenant moves out (I could be wrong), so it's unclear what parts are still valid, or what parts become invalid if the second contract supercedes the first (which I guess it can't, since the contract isn't between the girls and the landlord).
Posted by Koichi | June 5, 2005 9:01 PM
Posted on June 5, 2005 21:01