The landlord and tenant laws in your state determine whether you can break a lease because your roommate died, as well as what’s written in the agreement. Your roommate was either a co-tenant or subtenant. Both of these relationships have different contractual obligations and affect how to break a lease in the case of a roommate’s death.
Some States Allow You to Break the Lease
A co-tenant, or joint tenant, is directly obligated to the landlord and not to another tenant. You can terminate a lease if a co-tenant dies in some jurisdictions, but most of those state statues require you to give the landlord notice. Some statutes permit an exception to the notice requirements if your roommate is 60 years or older. Your lease may also address the issue with a lease void on death clause. Review the lease first for any provisions that pertain to breaching a lease if a co-tenant dies, before you refer to your state statutes.
Other States Don’t Allow You to Break the Lease
In jurisdictions that don’t allow you to terminate the lease upon your roommate’s death, you’ll be responsible for the total rent payment. The reason is that a co-tenant is “jointly and severally” liable for rent. That means the landlord can collect all of the rent from you and require you to meet the other obligations of your lease agreement. Your roommate’s estate is responsible for the lease payment, and you would have to sue the estate for your roommate’s rent payments.
Rules for Subtenants
If you did not sign a lease with your roommate and the lease is under her name, then there are several possible scenarios. Your lease agreement absent any reference to termination upon death and state statues will determine how it all plays out. Courts will use the facts of any case to imply the type of relationship that you and your roommate had in the absence of an agreement.
For example, a judge may rule that you and your roommate were co-tenants because your roommate paid his portion of the rent directly to the landlord each month. Another judge may rule that you were a sub-tenant and your roommate was a sub-landlord, who was solely responsible for rent payments and rent obligations. In that case, the landlord can evict you, or agree to rent to you as the estate may continue to pay your roommate’s rent. The landlord might also negotiate a new lease agreement with you as a tenant. If the estate continues to pay the rent and meet other rental obligations, then you may not be able to break the lease. It would be rare for an estate to continue to pay rent, but it might be cheaper than fighting the landlord in court.
Before you break a lease ask a tenant lawyer for advice on the matter. Even if you move out, you could find yourself owing back rent and paying for your landlord’s legal costs if you were not legally able to walk away from the lease agreement.