Sean Radue – Radue Attorneys
With many people facing tougher economic times, the Property Poser expert considers the fairly popular issue of sharing accommodation with a flatmate.
A reader explains that she has shared an apartment with a flatmate before, with less than pleasant results, and would like to know what to consider before entering into such an arrangement again.
According to Sean Radue of Radue Attorneys in Port Elizabeth, timing is an aspect that may, to a certain extent, dictate how the transaction will take shape.
“If the reader were already renting a property and decided to take on a flatmate, the lease would already be in our reader’s name as tenant.”
From a legal perspective, Radue says the reader should then enter into a sub-lease with the flatmate as that person would then be renting a portion of the property from her, possibly with certain areas of the property being jointly used.
“It’s important to ascertain whether the lease between the landlord and original tenant permits subletting as, in many instances, subletting is specifically excluded or subject to certain conditions being met.”
Practically, however, it does seem to happen that casual arrangements between flatmates are effected all the time, he says.
“The tenant should be aware that this type of arrangement could be regarded as a breach of the provisions of the lease agreement.”
Where two people wish to share a leased property, Radue says they could jointly conclude a lease agreement with the landlord.
“This type of arrangement normally results in both tenants being jointly and severally liable for the obligations of the tenant.”
Where one of the tenants is, for example, unable to pay his or her portion of the rental, the landlord’s remedy is not limited to the defaulting tenant only, cautions Radue.
“As far as the landlord is concerned, he has received less than the agreed amount for rental and can seek to enforce such legal action as may be available against the tenant.”
Another option is for the landlord to enter into separate leases with each of the tenants, he says.
“The reader would thus avoid a situation whereby one tenant becomes responsible for the obligations of another.”
Radue says one potential problem with this scenario is that it is the landlord who has control over who a potential replacement tenant will be.
“Not all tenants would be too happy to accept such a situation, preferring to share with friends or, at least, a person of their choosing.”
An often-overlooked aspect is the management of the relationship between the flatmates, he says.
“Depending on the manner in which the sharing has arisen, one flatmate may be in a position to dictate terms to the other regarding aspects such as the division of chores, the use of the common areas and the use of items brought into the property by one or the other.”
Radue says it is also important to address whether friends or visitors are permitted and, if so, what rules apply in such a situation.
“A fair degree of trust is required where a tenant with a furnished property chooses to sublet a room or portion of a rented property to another person.”
The newcomer will have access to possibly valuable electronics, furniture and the like, as will his or her friends and visitors, he says.
“Only with mutual respect and observance of rules of conduct will the situation remain satisfactory for an extended period of time.”
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