What are your legal options if your subletter won’t pay rent?

What are Your Legal Options if Your Subletter Won’t Pay Rent?

Published on February 28th, 2017
By Jennifer Oppriecht

What if your subletter won’t pay you the rent? You do have some legal recourse, but your options are very limited. We tapped the expertise of an attorney for insights and options. The most important takeaway: Find the right subletter in the first place.

Congrats – you’ve subletted your apartment! All your problems are solved — until your subletter decides not to pay the rent.

It happens, especially to college students who are desperate for cash and will sublet  their apartment to just about anyone. That’s a dangerous move, as you could wind up with the subletter who won’t pay.

What are your legal options?

To find out if you have any legal recourse, we tapped the expertise of Maxwell Charles Livingston, an attorney who provides legal expertise to RocketLawyer.com, where he answers questions like the ones in this post, as well as running his own firm, the Law Offices of Maxwell Charles Livingston.

Attorney Maxwell Charles Livingston

Attorney Maxwell Charles Livingston

Essentially, your legal options are very limited. Assuming that you checked with your landlord before subletting your place (a landlord may or may not allow subletting, so you must always check first), you are still the person on the lease responsible for the rent.

That being said, you can still sign some sort of agreement with the subletter in which you stipulate the rent, when it is to be paid, and any other issues regarding financial details — such as payment of the utilities, etc.  

Ultimately, the rent is your responsibility

Livingston said you could potentially sue for breach of contract if they don’t adhere to this agreement. Beyond that, you can take a person to small claims court to resolve the issue. But ultimately, the rent is your responsibility.

Do you need to document communication — use emails, record phone calls, etc.?

Creating a paper trail is a good idea with a subletter in the event a conflict arises.  You can record phone calls in Wisconsin, but you can’t use them in court. Emails can be used and are helpful. It’s good to have a paper trail.

Can you move the person’s stuff out the apartment and onto the street?

Livingston referred to actions such as moving a subletter’s belongings out of the apartment and into the street as “self-help.” Your landlord can’t engage in self-help (of the legal variety), and neither can you.

Can you change the locks?

This falls under the classification “self-help” and wouldn’t be wise. You put yourself at risk, as you’re violating the ATCP residential practices.

Typically, managers don’t even allow residents to change locks in the first place. The locks are usually connected to the master key system, as the manager needs access to the apartment.

Is there a certain eviction letter or process you should use if they won’t pay rent but stay in the apartment?

You don’t own the property, so you don’t have the right to evict. Only the landlord has the right to evict.  The only way eviction would be possible is if you would have assigned the lease back to the landlord at the time of subletting, so they could take over.  (However, in that case, you wouldn’t be subletting anymore!)

You don't own the property

Should you take them to small claims court?  Is it worth it?

It all depends on the amount of money involved.  You have to pay for the filing fee to go to court (estimated to be under $100.)  It all depends on the amount you are owed and whether or not you can afford to spend time pursuing the matter.

Even if you do win the judgement, there is no guarantee you’ll be paid.

Can the property management company take any action?

Unfortunately, because you are the one on the lease, any legal action would be taken against you, as it is your responsibility.

Avoid the problem upfront by finding the right subletter

This may feel like we’re rubbing salt in the wounds, but an ounce of prevention is worth a pound of cure. Find a good subletter in the first place, and you don’t have to deal with any legal issues.

Find a good subletter in the first place

So what are some important tips for finding the right subletter upfront? Here are a few of top suggestions:

1.Collect rent upfront. You’ll find out lightning fast if your subletter has financial issues if you ask for cash up front. Also, if you ask for rent at the end of the month, it’s much easier for the subletter to skip out and leave you stuck with the bill.

2. Run a credit report on the person and check their references. It’s not unreasonable and invasive. The reference check should be rather easy and straightforward – get 3-5 names and phone numbers. It’s best to talk to someone over the phone for verification.

Getting a potential renters credit report is a bit more complicated, as noted in this post on Nolo.com.  This is a great post that tells you what to look for in a credit report, and the forms you’ll need to subletter to sign that provides consent to pull a credit report.

You can’t go directly to one of the three credit bureaus to see the report, however. You’ll have to work through a credit reporting agency. As Nolo.com states, search for “tenant screening” to find a service that will pull a report for you.

3. Get a security deposit of at least a half month’s rent. This will give you added leverage in the event the subletter decides not to pay.

Doing it right, right out the gates

No one likes to get mired in a legal spat, especially when it involves a subletter. As Maxwell Charles Livingston pointed out, your options are extremely limited.

Once again, the most important way to get out of a jam is avoid the jam in the first place. Download our subletting guide and follow the steps to sublet your apartment the right way.

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