Beware of Joint and Several Liability in Residential Leases

I've sat through numerous landlord/tenant disputes in the District Courts. One of the least understood and the most contentious issue in rent disputes is with the Defendants and the concept of Joint and Several Liability. I've also dealt with these clauses in my son's college apartment leases.

Joint and Several Liability is a legal principal where any one member of a group can be liable for the actions or inactions (obligations) of any other member of that group. This liability can be established by law, or more commonly, by contract.

It is frequent in a landlord-tenant relationship that the landlord's lease will have a Joint and Several Liability clause in that lease, if the lease is for more than one tenant. By signing that lease you have contractually obligated yourself to that lease. In doing so, the Joint and Several Liability clause will typically make you liable not only for your share of the rent payment, but also the rent due from the other tenants if they fail to pay.

In the typical scenario, one or more tenants have moved out without making contractual arrangements with the landlord. In doing so, they left you (and any others remaining) liable for the absent tenant's rent. It doesn't sound fair--all tenants signed the lease agreeing to pay their share of the rent, why should YOU now have to pay their rent after they skipped out?

This question can best be answered by looking at the Landlord's perspective. If the Landlord had to chase down every tenant in a multi-tenant lease to get his rent, he may very well not rent to multiple parties in the future. Furthermore, it is the Landlord who assumes the risk of renting to the typically unknown parties. In Michigan, the law allows him to mitigate his risk by allowing the landlord to include a Joint and Several Liability clause in your lease agreement.

I've watched a Defendant in court who was the only one being sued (or Plaintiff tried to find the other tenants to sue them, but couldn't). Most defendants do not understand how they are being sued for thousands of dollars in back rent due from other tenants on the lease. The same applies if the lease holds all tenants equally (Joint and Severally) liable for any property damage. The answer is that they contractually agreed to do so by signing the rental agreement that contained a joint and several liability clause.

The little bit of good news in regards to Defendants' rights is that the Defendant being sued has the right of contribution by the other tenants. This means that the Defendant can legally demand that the other tenants pay him for their share of the rent that the Defendant paid in their behalf. However, in reality, the Defendant left holding the bag after the other tenants have moved out may have a difficult time finding and collecting from the other former tenants.