You may become a primary tenant if your roommate moves out or if you decide you need a roommate and your landlord agrees. You might also become a primary tenant if your future landlord prefers to communicate and be in a lease with only one primary tenant, who then oversees the other individual subtenants in the same unit. If you are in a primary tenant-subtenant situation, here’s what you should know.
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What is a primary tenant?
A primary tenant is a tenant who has a direct relationship with the landlord while the other subtenants do not. Primary tenants are often referred to as master tenants. This might be someone who has moved out and brought in a new tenant under a Sublease Agreement, but remains legally responsible for the lease. It could also be a tenant who remains in the rental unit and brings in an additional tenant without that person being added to the Lease Agreement.
The tenant who is not on the Lease Agreement is the subtenant.
What are the primary tenant’s responsibilities?
The primary tenant is the only tenant who has official contact with the landlord. Depending on the situation, the landlord may recognize the subtenant and do things like accept maintenance requests made by the subtenant.
The actual Lease Agreement, however, is between the landlord and primary tenant, who is ultimately responsible for paying rent to the landlord. The primary tenant is also responsible for bringing problems affecting the subtenant to the attention of the landlord.
Because the primary tenant is the only one on the Lease Agreement, they are also the only persons financially responsible to the landlord. Ultimately, the primary tenant may be liable if the subtenant does not pay their share of rent or if the subtenant causes damage. While the primary tenant may have a legal claim against the subtenant, they are still obligated to pay the landlord before the resolution of any civil action.
The primary tenant may also need to get a Consent to Sublease from the landlord if the Lease Agreement does not already permit subleasing.
Can a primary tenant raise rent?
The primary tenant’s ability to raise rent depends on their Sublease Agreement with the subtenant, their Lease Agreement with the landlord, and local law.
The Sublease Agreement should specify how much the subtenant pays. This might be a fixed amount or a percentage of the rent the landlord charges. The primary tenant typically cannot raise the stated rent until a new Sublease Agreement is in place.
The landlord has the authority to include limits in the main Lease Agreement on what the primary tenant may charge subtenants. For example, the primary tenant’s Lease Agreement with the landlord might only allow them to charge the subtenant up to half the full rent.
In some jurisdictions, such as California, it is illegal for a primary tenant to charge a subtenant more than a proportional share of the rent based on their private living areas. The goal of these laws is to prohibit primary tenants from profiting on subtenants.
In the absence of laws like this, the primary tenant and subtenant are free to negotiate their own agreement. In other areas, the primary tenant may have to disclose the portion of the rent the subtenant is paying to the landlord and abide by any other legal requirements.
If the primary tenant intends to raise the rent the subtenant pays, it is generally a good practice to make a Rent Increase Letter.
What happens when a primary tenant moves out?
There are two things to consider when a primary tenant moves out.
First, if the subtenant wants to stay beyond the end of the lease, the subtenant may need to make a new Lease Agreement with the landlord. The landlord may want to qualify the subtenant like any other tenant if they have not already done so. The primary tenant will also want to provide a Notice of Intent to Move so that they do not remain responsible beyond the end of their Lease Agreement.
Second, the primary tenant may want to remain on the premises until the subtenant moves out or the latter signs a new Lease Agreement with the landlord. If the subtenant refuses to move out, the primary tenant may be liable to the landlord for rent and other damages as a holdover tenant.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.