Roommate Agreement vs. Cohabitation Agreement: Which One Is Right for You?

Roommate Agreement vs. Cohabitation Agreement: Which One Is Right for You?

by Ronna L. DeLoe, Esq., November 2019

Living together—with a friend, one or two strangers, or someone with whom you're romantically involved—is a great way to get your own place and share the rent. Just because you get along with someone, though, doesn't mean they'll be a good roommate.

Likewise, while you may adore your significant other, you won't know whether they're a difficult roommate until you actually live together. Before moving in together, having a roommate or cohabitation agreement is essential, because too many people have been burned by roommates' vacating the rental before the lease expires.

Roommate Agreements

A roommate agreement is a contract that specifies the rights, liabilities, and duties between two or more roommates. Roommate agreements are legally binding in court except for clauses that contain division of chores. A court will ignore who takes out the trash or cleans the bathroom, but the court will generally uphold the agreement. You can find roommate agreement forms online or you can have an attorney draft one for you.

If your roommate isn't someone you're in a romantic relationship with, you'll need a roommate agreement rather than a cohabitation agreement. A roommate agreement explains what happens if one of you breaks the lease, so it should state what happens to the security deposit and who pays the remaining rent and utilities. The roommate agreement is between roommates and doesn't involve the landlord, while a lease is between one or more roommates and the landlord.

Roommate agreements are essential in situations where your roommate decides to move out while the lease is in effect. If you have a roommate agreement, you can sue your roommate for the remaining rent and utilities if the agreement allows it. Without an agreement, you could be stuck for the remaining rent and utilities.

How to Evict a Roommate

Whether you can evict your roommate depends upon whether your roommate is on the lease and what's in the roommate agreement. If you're both on the lease, you'll usually need the landlord's approval for an eviction.

If you have a roommate agreement, you'll want an eviction clause to protect you. For example, if your roommate is a night owl and you're not, your living arrangement may not work; you can get your roommate to move out with the right language in your agreement. Without a roommate agreement, the only way you can evict your roommate is if the lease allows it or if your roommate is doing something illegal or dangerous, causing damage to the apartment, or is excessively noisy.

If there's no written lease with the landlord, consider evicting your roommate and replacing them with someone else if you don't get along. In that case, you'll want your roommate agreement to specify when you can evict. Still, you'll probably have to go through eviction proceedings as if you were a landlord if your roommate will not willingly leave.

Cohabitation Agreements

Cohabitation agreements are more comprehensive than roommate agreements because they not only involve what happens if someone moves out early, but they also include what happens to shared property, such as bank accounts, cars, and joint assets.

Cohabitation agreements are contracts between two people who are romantically involved. While you can also get a roommate agreement if you're a romantic couple, a cohabitation agreement protects couples better than a roommate agreement because cohabitation agreements address issues that roommate agreements don't. They also can list how personal property, such as dishes, furniture, and other items you bought as a couple, get distributed.

Cohabitation agreements are legally binding, so long as you're not forced to sign one. They're not prenuptial agreements because cohabiting doesn't necessarily mean you'll get married. Nevertheless, cohabitation agreements can contain clauses such as who gets custody and visitation of any children, child support—although that's not usually enforceable—and who is responsible for debts, rent, utilities, and other charges should you split up.

Creating a cohabitation agreement is important, especially in states where common law marriage is legal. For example, if you're living with your romantic partner—no matter whether you're a same-sex or heterosexual couple—and you don't want to hold yourself out as married by common law, a cohabitation agreement is evidence that you're not married. This is significant because, if you were to split up while married by common law, you'd actually have to get divorced, which you wouldn't have to do if you merely cohabited as a couple.

A cohabitation agreement also is significant if one of the common law partners dies and the survivor claims they're a beneficiary of the deceased person's property. If there's no will, a cohabitation agreement, however, does not allow the survivor to claim rights to the deceased's estate unless it's specifically spelled out in the agreement.

Both roommate and cohabitation agreements protect you should one of you move out. It's better to have an agreement in place than to find out later that you're responsible for the remaining rent and utilities. Make sure an agreement is in place even before you decide to live together.