Can I Sue a Roommate for Breaking a Lease?

Yes, you can sue a roommate for breaking a lease agreement. Although you are still on the hook to your landlord for the total amount of rent owed and for your roommate's share of the expenses, you can go after them if they leave you in the lurch.

Most of these cases between cotenants can be handled in small claims court. You may be able to take on the challenge on your own, but it may make more sense to speak with an experienced landlord and tenant lawyer in your area so you have a better understanding of what your legal rights are as well as the best way to prove your case.

We All Have Had Roommates

Americans are increasingly sharing their home with others. According to the Pew Research Institute, nearly 80 million Americans live in a shared home, generally defined as a household with at least one “extra adult" who is not the household head, the spouse or unmarried partner of the head, or an 18- to 24-year-old student. Another statistic puts the number of rental households at approximately 40 million. The bottom line? A whole lot of people have roommates.

You may be one of those people. If you're lucky, you have a great experience. They pay their share of the security deposit, pay every month's rent on time, contribute fairly to the utilities, and help you clean the place when the lease is over. But if you're unlucky, they can ditch you in the middle of the lease, leaving you to pay their portion of the rent and expenses for the duration of the lease.

If this happens to you and the landlord comes after you for their share of the rent payment, consider bringing a lawsuit against your ex-roommate. You have a claim.

What Is a Lease?

A lease is a contract that creates a legal and financial relationship between the landlord and the tenant with respect to rental property. A landlord-tenancy relationship creates obligations between the landlord and the tenant that are typically set out in a written lease. Among other obligations, a tenant is obligated to pay rent, typically on a monthly basis, to the landlord in exchange for the right to live in the rented location. If you don't have a written agreement, the law of most states will impose a lease that lasts month-to-month.

Rent isn't the only obligation created by a rental agreement, however. Most leases require tenants of real property to do all sorts of things, such as maintain the condition of the property, shovel snow, obtain renter's insurance, pay an additional deposit for pets (if pets are even allowed), pay utilities, avoid smoking, and avoid any illegal activity. A lease will also place requirements on subleases. If a tenant breaches the lease by failing to comply with these provisions, the landlord may have the right to seek relief in court, including in some cases have you, upon sufficient notice, evicted in an eviction lawsuit.

Tenants and Co-tenants

Tenants also have responsibilities to each other. In most states, co-tenants who live on rented property together are responsible to each other for their share of the rent. This is called a right of contribution. For example, perhaps you have two roommates and the landlord wants to receive the rent in a single check. If you write the check for the full rent, each of your co-tenants is responsible to you for one-third of the rent.

But there's more to a lease than just rent. Co-tenants are responsible to each other to fulfill all obligations of the lease. If a roommate violates a term of the lease, the landlord, depending on what the lease says, can hold all tenants responsible. That may include evicting the lot of you. So what your roommate does can affect you directly.

Can I Sue My Roommate?

Let's say your roommate skips out on a written lease without written notice and you still have three more months to go. Your lease prohibits smoking and requires you to maintain the property. You do not have a written roommate agreement.

When you check their room, you see that they lived like a teenager. The room is filthy, there's a big hole in the wall, and you see cigarette burns in the carpeting. The whole room reeks of smoke. The amount to clean the place and fix the wall exceeds the amount of your security deposit.

Unfortunately, under the lease, the landlord can hold you responsible for their share of the unpaid rent and for the damages done to the apartment. That means you lose the security deposit, pay the damages that exceed it, and either have to cover rent for the three months or get someone acceptable to the landlord to take over as a tenant.

But if you can find your ex-roommate, you may be able to sue them in court for contribution for nonpayment of rent and for damages done to their room.

Contribution Claim

To establish a contribution claim against an ex-roommate, you would need to show the following:

• You and your ex-roommate are co-tenants
• You fulfilled your lease obligations to the landlord (e.g., paid rent, paid expenses, etc.)
• Your ex-roommate failed to perform their lease obligations
• If your roommate skipped out on a lease, some states require you to also show that you tried to find another co-tenant to cover their obligations under the lease (what lawyers call “mitigation of damages")

Proving these elements is pretty easy. Using our example, you could point to your ex-roommate's signature on the lease to show that they are a co-tenant. You would also be able to show that you paid the full amount of the rent with canceled checks (if you paid by check) or your bank records.

Proving that your ex-roommate failed to perform their obligations is also pretty straightforward. Your landlord would be able to tell a judge that your ex-roommate didn't pay the money owed to them. You could show that your ex-roommate failed to perform their obligation to maintain the property by presenting pictures of the cigarette burns and the hole in their wall. As for damages to the property, you could provide the bills you paid or estimates you obtained for cleaning the place and fixing the wall.

Proving mitigation can be a little tricky. In some states, the burden is on you to show that you took steps to avoid costs and expenses resulting from your ex-roommate's breach of the lease. If you can't prove you “mitigated" these damages, you cannot recover them.

Back to our example: your ex-roommate moved out of your rental unit with three months left on the lease. You would need to show that you tried to get someone acceptable to the landlord to take your ex-roomate's place on the lease if you want to recover their share of the three months' rent they still owed. You could do this by showing the judge ads you posted seeking another roommate. Make sure you try to get a new roommate as soon as your ex-roommate splits, and make sure that you keep the dates your ads are posted.

Small Claims Court

So you have a contribution claim and the evidence to prove it. Your next step is asserting your legal rights. In most cases, you would do that by bringing a small claims lawsuit in your local small claims court.

The basic purpose of small claims court is to help people resolve disputes over small sums of money. State law sets the maximum limit of small claims court, which ranges from $2,500 to $25,000, with many states falling in at $10,000. If your claim is within that limit, you would be able to take advantage of small claims court.

Most people who bring small claims actions represent themselves. In many states, you are not allowed to have a lawyer represent you in a small claims matter. So make sure you check your local court's rules beforehand.

Small Claims Procedures

Generally, you start a small claims matter by filing a complaint. A complaint is a legal document that describes what the person you are suing (the “defendant") allegedly did and requests an amount of money to compensate you for the harm they did to you (“damages"). You typically have to pay a filing fee to file your complaint.

Next, you have to deliver a copy of your complaint and a court-issued summons in the manner required by state law. This is called “service of process." Once you've served the complaint, the defendant has the opportunity to respond to your allegations in a legal document called an answer. The answer may also contain defenses independent of your allegations.

One possible defense is that you waited too long to bring your claim. States have laws that prescribe the time in which you can bring a legal action called statutes of limitations. If the statute of limitations on your claim expires before you start your legal action, your claim is time-barred. So act promptly.

Once the defendant has filed their answer, the court will set the matter for a hearing. At the hearing, the court will hear evidence from each side, starting with the party who brought the lawsuit (the “plaintiff" or, in some states, the “complainant"). After each side has presented their case on their court date, the judge will either issue a decision from the bench on the legal issues or take the matter under advisement so that they can more fully consider the evidence presented. The parties then receive notice when the judge has ruled, along with the ruling.

A Lawyer Could Help

The hardest part about bringing a contribution claim against a former roommate, really, is finding them. They generally don't skip out on a lease and give you a forwarding address. Serving them with your complaint will probably be your first headache.

Getting legal advice from an experienced landlord-tenant attorney can be beneficial. Even if they can't appear for you in small claims court, a lawyer familiar with tenant rights and tenant law can still help track down your ex-roommate and help you prepare your case. They can give you legal advice within the context of an attorney-client relationship that can guide your approach in court and enable you to win.