The flatmate's sub-tenant does not pay his share...

The flatmate's sub-tenant does not pay his share...

"I live in a shared flat with a friend. We both signed the contract. My flatmate has gone on a long trip and decided to sublet his room. The sub-tenant is not paying me the rent. As I can't afford the full amount on my own, I'm a bit behind with my payments. Can I terminate the lease on my own? Does the landlord have the right to demand that I pay the full rent?

Alex, Geneva

A clear distinction must be made between the legal relationships arising from the head lease and those arising from the sublease.

In this case, you and your friend are the two main tenants, so you must act together to terminate the lease. You cannot validly do this alone. Several debtors are considered to be jointly and severally liable when they declare that they are obliged in such a way that each of them is liable to the creditor for the whole. When several people sign a tenancy agreement together, they are in principle jointly and severally liable. You and your flatmate are therefore jointly and severally liable for the rent. In terms of joint and several liability, the law stipulates that the creditor may, at his or her discretion, require all or any of the joint and several debtors to fulfil all or part of the obligation. The landlord is therefore perfectly entitled to turn to you and claim full payment of the rent.

It is not enough for you to argue that the sub-tenant has not paid the principal landlord, because the sub-letting contract is a contract in its own right and independent of the principal lease. The sub-tenant is not a party to the main lease and therefore has no obligations towards the main landlord. They must pay their own rent into your hands, and you are then responsible for paying it to the head landlord. In the event of late payment of rent, the head landlord cannot take direct action against the sub-tenant. However, it can, of course, terminate the main lease if the rent is not paid, which will oblige the tenant to get the sub-tenant to leave. The only direct right the tenant has is the right to require the subtenant to use the property properly, i.e. in accordance with the use authorised by the head lease.

Sublessors can sometimes find themselves in unpleasant situations, like yours. The landlord must fulfil his obligations under the lease, even if the subtenant does not fulfil his own obligations under the sublease.