There will come a time when a resident will want to be removed from a lease, or another resident will want his or her co-resident removed from a lease. In the first instance, the resident comes to you and asks to be “let out” of the lease for whatever reason. Possibly they have “broken” up with the co-resident, having problems with the co-resident, or it could be something as innocent as a job transfer, in which the resident just wants out of the lease obligations. In the touchier situation, a co-resident wants another resident removed from the lease. This usually occurs when one resident has left the apartment, skipped out, is in jail or just plain disappeared. The remaining resident often wants the co-resident removed from the lease so he can get another resident on the lease, or sometimes it is an attempt by one resident to try to keep the other resident away from the property. In other words she is attempting to “evict” the resident in her own way and trying to use you to assist her.

Do You Have to Remove a Resident From a Lease if Requested?

There is absolutely no legal requirement that you must remove a resident from a lease. Sickness, domestic issues with the other resident, job transfers or any other reason why a resident may want out of a lease are not “legal reasons” which would require the manager to remove a resident from the lease. However, there may be instances in which even though the manager is not required to remove a resident from a lease, a judge could feel that the resident’s reason is such that you should. We need to remember that in county court, the court in which most situations regarding manager resident law are heard, you are dealing with judges who will sometimes make decisions not necessarily based upon the law, but rather equity, and what the judge feels is the right thing to do. To put it bluntly, the county court judge will sometimes do whatever he or she wants to do, and you are stuck with it; your only recourse is to appeal the decision in circuit court, and we all know this is not usually economically feasible. If the resident has a particular disability that makes it difficult or not feasible to live on the premises, you may want to consider letting him out of the lease. An example would be a resident living in a second floor unit in a building with no elevator. The resident acquires a disability which is preventing him or her to get up the stairs, and no downstairs units are available. This would probably be a case in which you would allow the resident to be removed from the lease.

One Resident Wants to be Removed From the Lease

If a resident comes to you and wants to be removed from the lease, as we have said, you can just simply say no. The resident will then probably vacate the premises, leaving the other resident behind, and both residents will continue to be liable under the lease terms, regardless that one resident no longer resides on the premises. If the other resident continues to pay the rent, no harm has been done. Our office does not recommend that you remove a resident from a lease, because it is not required, and secondly, you potentially lose your ability to collect your money due under the terms of the lease agreement. With that said, we know that managers sometimes will in fact agree to let a resident be removed from the lease. If this is done though, what about the security deposit? Did not one or both residents pay this security deposit and/or last month’s rent when they moved in? Who gets this money if one resident is removed from the lease? If you are going to allow a resident to be removed from a lease, these issues need to be dealt with in writing.

One Resident Wants the Other Resident Removed From the Lease

If one resident comes to you and asks that you “take the other resident off of the lease”, you can be fairly well assured this will not be possible. In most cases it is requested when a resident has either left the area, is in jail or in domestic violence situations. The one resident feels that you have the power to unilaterally take the other resident off of the lease, and thus the remaining resident can prevent the resident you took off the lease from residing on the property. You just cannot unilaterally remove a resident from a lease, unless the resident who is leaving agrees, and this agreement is in writing. It does not matter where the resident is or what the resident did, the resident has an interest in the property and is subject to all the rights and responsibilities of the signed lease. The fact that the resident was put in jail for murder does NOT give you the power to remove this resident from the lease. When asked by a resident to remove the other resident from the lease, you need to explain that it is not possible.

One Resident Has Disappeared and the Remaining Resident Wants His Friend ADDED to the Lease

Again, it cannot be done. You would be interfering with the lease that both residents signed, specifically that of the resident who is no longer residing on the premises but still has rights and obligations by virtue of signing the lease.

The Lease is up For Renewal But One Resident is now Gone

In the case where the lease is up for renewal, it is possible to renew the lease only in the name of the remaining resident or add another resident if and only if the other original resident on the lease is gone and you can confirm this completely. You need to be extremely careful when doing this, because possibly the resident who is gone is simply temporarily detained in a jail or mental institution. The other big issue is the security deposit. You cannot just transfer the security deposit to the new lease, unless all the original residents are on that new lease. Remember, the security deposit belongs to the residents who originally signed the lease. The fact that one resident is gone does not automatically vest this security deposit in the remaining resident. Prior to entering into a new lease, we recommend that you ask the remaining resident for a brand new security deposit, and you do your normal disposition of the original security deposit by sending out the Notice of Intention to Impose Claim on Security Deposit and following all the procedures required by Florida Statutes 83.49. A very common mistake made by managers is to simply carry over the security deposit to the new lease. This is absolutely wrong if the residents are not the same.

Does the Remaining Resident Have to Agree to the Manager Removing a Resident From the Lease?

It is a good idea. Case law has held that releasing one resident from the lease may result in the release of the other resident from the rent obligations. You might think that a manager has the full right to allow one resident completely out of the lease obligations and hold the remaining resident to the full obligations under the lease but courts hold otherwise. The remaining resident has no say in your decision to allow a resident to be removed from a lease BUT you may be hurting your chances of collection against the remaining resident. Most forms in use today, commonly called ROOMMATE RELEASES have a spot for all the parties to sign but often the remaining resident will refuse to sign the form.

The Mechanics of Removing a Resident From a Lease

In order for you to properly remove a resident from a lease, the manager, the remaining resident and the vacating resident should sign a Resident Vacating Agreement with similar wording to the example below. If the remaining resident refuses to sign, then no one should be released.

RESIDENT VACATING AGREEMENT

The undersigned Resident Mary Jones hereby agrees that she has completely vacated the premises known as 125 Main Street, Mountain Grove, Florida or will vacate the premises no later than June 20, 2006.

Resident Mary Jones understands that Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals.

Resident Bill Smith shall continue to reside on the premises and shall be subject to all the terms and conditions of the lease agreement and any renewals and fully liable for all payments due under the lease and amounts owed.

Resident Mary Jones agrees to relinquish all rights to the security deposit, advance rent, any prepaid fees or charges and agrees that nothing is owed to Resident Mary Jones by the Manager or its agent(s).

Resident Mary Jones agrees to release, acquit, satisfy and forever discharge the owner of the premises, any other owners of the rental premises, any agents of the owners, its owners, agents, employees and assigns, for and from all manner of action and actions, cause and causes of action, suits, debts, dues, sums of money, accounts, reckonings, bonds, bills, specialties, covenants, contracts, controversies, agreements, promises, variances, trespasses, damages, judgments, executions, claims and demands whatsoever, in law or in equity, which resident ever had, now have, or which any personal representative, successor, heir or assign resident, hereafter can, shall or may have, arising out of the tenancy.

Resident Mary Jones agrees to hold the property owner and/or its agent(s) harmless for damage or loss to any items of personal property left on or about the premises by Resident Mary Jones.

If Resident Mary Jones completely vacates the premises as per this agreement and does not return to or otherwise reside on the premises at any future date, the owner hereby shall release resident Mary Jones from the obligations of the lease agreement.

Date area and signature area. Signature lines for the Manager, the remaining resident Bill Smith and the Vacating Resident Mary Jones

 

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