Lease expires. 1/2 tenant leaves, 1/2 refuses to leave.

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Lease expires. 1/2 tenant leaves, 1/2 refuses to leave.

Joyce Williams
Rental Property Investor · NY · Member since 2020 · 118 posts · 54 votes

If a lease expires and there is a husband and wife on the lease and the husband leaves but the wife refuses to leave, are they both still responsible for the rent even though the husband no longer lives there?

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Nathan GesnerBusiness Member
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Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
5y

I'm assuming you allowed them to stay, in which case they converted to a month-to-month lease?

Most leases have a "joint and several liability" clause. It essentially says everyone named on the lease is 100% responsible for the terms of the lease. As long as his name is on there, he's responsible.

On the other hand, the wife can't pay 50% of the rent and call it good. She is 100% responsible, just like the husband is 100% responsible. If the rent is not paid, they all face eviction. If the wife trashes the place, the husband is liable.

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  • John Thedford
    Real Estate Broker · Naples, FL · Member since 2013 · 9k+ posts · 6k+ votes
    5y

    Has the lease expired? If so, you have a holdover tenant. My best non-lawyer guess would be he is not responsible because he fulfilled his obligations. 

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  • Nathan GesnerBusiness Member
    Moderator
    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    5y

    I'm assuming you allowed them to stay, in which case they converted to a month-to-month lease?

    Most leases have a "joint and several liability" clause. It essentially says everyone named on the lease is 100% responsible for the terms of the lease. As long as his name is on there, he's responsible.

    On the other hand, the wife can't pay 50% of the rent and call it good. She is 100% responsible, just like the husband is 100% responsible. If the rent is not paid, they all face eviction. If the wife trashes the place, the husband is liable.

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  • Theresa HarrisPro Member
    Member since 2019 · 15k+ posts · 11k+ votes
    5y

    Would the wife qualify on her own to pay the rent?  If so, and assuming she is a tenant you want to keep, have her sign a new lease.

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  • Kyle J.
    Rental Property Investor · Northern, CA · Member since 2012 · 5k+ posts · 5k+ votes
    5y

    @Joyce Williams They both signed the lease. The property has not been returned to you. They still have possession/control of it. They’re both still responsible. 

    Here’s another way to look at it. There’s only one way for a landlord to recover possession of a property from tenants who refuse to voluntarily return possession/control to the landlord, and that’s through the eviction process.

    Now, I know from one of your other posts that you can’t evict tenants in NY right now even if it’s just for them being a holdover tenant. However, if you could, you’d have to name BOTH the husband and wife in the eviction lawsuit (even though he might have already moved out, since he’d still have a lawful right to return and occupy it).

    Bottom line, they’re both responsible. 

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  • JD MartinBusiness Member
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    Rock Star Extraordinaire · Northeast, TN · Member since 2015 · 10k+ posts · 16k+ votes
    5y
    Originally posted by @Nathan Gesner:

    I'm assuming you allowed them to stay, in which case they converted to a month-to-month lease?

    Most leases have a "joint and several liability" clause. It essentially says everyone named on the lease is 100% responsible for the terms of the lease. As long as his name is on there, he's responsible.

    On the other hand, the wife can't pay 50% of the rent and call it good. She is 100% responsible, just like the husband is 100% responsible. If the rent is not paid, they all face eviction. If the wife trashes the place, the husband is liable.

     This is really the key. If your lease (most do) has a clause that converts to month to month, and they exercised even one month of that, then without written notice he would still be liable. However, if there's no holdover clause, and assuming they have separated, then he has fulfilled his obligation and you have a squatter in your property. 

    Essentially the law is something like this: if your lease allows it, and they offer rent and you accept it, then you still have a binding contract with only the length of term being altered. However, if you do not have that holdover, or if they did not offer rent or you did not accept it, then the contract terminates as specified in the lease. Depending on your state, you may still, as the owner, be required to notify them that their contract is expiring and you do not intend to renew.

    Here is how I would see it play out in court: you sue both for eviction and non payment, and the husband either proves that they are separated and that wife stayed of her own volition, or that they are both liable for either holdover rent or are squatters. If the husband proved separation and fulfilment of the lease, he gets released from obligation and the suit continues against wife only.

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  • Joyce Williams
    OP
    Rental Property Investor · NY · Member since 2020 · 118 posts · 54 votes
    5y

    @Kyle J........Thank you, I wanted to confirm that they are both still responsible.

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  • Joyce Williams
    OP
    Rental Property Investor · NY · Member since 2020 · 118 posts · 54 votes
    5y

    @John Thedford.......the lease expired October 2020, the husband left prior to the lease ending and was under the impression that the wife was leaving soon after however she stayed without my blessing and is refusing to leave.

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  • Joyce Williams
    OP
    Rental Property Investor · NY · Member since 2020 · 118 posts · 54 votes
    5y

    @Nathan G.....I didn’t allow anyone to stay. They were notified 60 days in advance that I wasn’t renewing their one year lease. A week prior to the date they were supposed to leave I contacted the husband just to check in and make sure they would be leaving on time. He informed me that he left and the wife should be out by (lease was up September 30, 2020) October 1, 2020, however she hasn’t left and is refusing to leave. 

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  • Joyce Williams
    OP
    Rental Property Investor · NY · Member since 2020 · 118 posts · 54 votes
    5y

    @JD Martin..... Thank you.

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  • Nathan GesnerBusiness Member
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    Real Estate Broker · Cody, WY · Member since 2010 · 28k+ posts · 41k+ votes
    5y
    Originally posted by @Joyce Williams:

    @Nathan G.....I didn’t allow anyone to stay. They were notified 60 days in advance that I wasn’t renewing their one year lease. A week prior to the date they were supposed to leave I contacted the husband just to check in and make sure they would be leaving on time. He informed me that he left and the wife should be out by (lease was up September 30, 2020) October 1, 2020, however she hasn’t left and is refusing to leave. 

    If they're least expired and they remained in the property, that is referred to as a holdover tenant and they can be evicted.

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  • Joyce Williams
    OP
    Rental Property Investor · NY · Member since 2020 · 118 posts · 54 votes
    5y

    @Nathan G........not in NY, not during this moratorium.

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