IS COSIGNER ON THE HOOK AFTER LEASE TERM EXPIRES?
QUESTION: After my daughter graduated from college, I cosigned a lease with her so she could get an apartment. The lease was for one year. She stayed on in the apartment, paying month-to-month for another two years after the lease expired. Unfortunately, she stopped paying rent after she lost a job and ran into some emotional difficulties. She was eventually evicted. The landlord is now going after me for more than $7,000 in unpaid rent. Can he ask me to pay for months after the lease expired?
ANSWER: As a handy how-to booklet for tenants and landlords says: “Read the lease. Read the lease. Read the lease.” That’s because the lease you signed is a contract that sets out all your obligations, and its terms should contain the answers to your questions.
By agreeing to cosign with your daughter, you became responsible for paying the rent if she defaulted and also became bound, with her, to all the terms of the lease. Whether you continue to be responsible for paying the rent after the initial one-year term expired depends largely on the wording of the lease. Unfortunately, important information on all the responsibilities of the cosigner are often buried in legalese. If you are uncertain about the meaning of any terms, you may want to contact an attorney for assistance. And, whatever else you do, make sure you get and keep a copy of the lease.
Some leases specifically address a cosigner’s duties if the tenant remains in the premises after the lease expires as a month-to-month or “holdover” tenant, or if the tenant sublets to a third party. If the terms of the lease allow it, a cosigner can be asked to pay if a sub-tenant defaults!
But even if the lease is silent on your responsibilities after the end of the lease term, you might still be on the hook. Under Michigan law, when a tenant holds over “the law implies a continuance of the tenancy on the same terms and subject to the same conditions,” as in the original lease, Bay County v Northeastern Michigan Fair Association (1941). What you have to be careful of is language that binds you to “all the terms of the lease.”
In an Illinois case, a cosigner agreed to be “fully responsible for upholding all covenants of this lease, including monthly rent payments,” if the tenant failed to do so. The lease also stated that if the tenant remained in the premises after the lease expired “a month-to-month tenancy shall be created.” The court ruled that by agreeing to uphold “all covenants” of the lease, the cosigner (like you, the mother of the tenant) agreed to be responsible for rent in the “holdover” provision, which was one of the covenants of the lease.
If a lease, as written, indicates that a cosigner’s responsibilities continue after the end of the lease term, you may be able to add language, with the landlord’s approval, that would limit your responsibility to the lease period only.
Parents should be very careful agreeing to act as cosigners for their children – and particularly when the son or daughter is to share an apartment with others. If all tenants are “jointly and severally” responsible for the rent, a cosigning parent could be asked to pay the entire rent if the rooming arrangement goes south.
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ASK THE LAWYER
By: Daniel A. Gwinn, Esq.
Attorney and Counselor at Law
GWINN LEGAL PLLC
900 Wilshire Drive, Suite 104
Troy, MI 48084