Location
I. Definition
Colocation or shared rental, this term refers to the rental by several tenants of the same real estate object, most often for housing purposes. Paradoxically, everyone knows what colocation is, but it is not defined by any Luxembourgish text.
The roommate may concern both housing or offices or other parts of a building rented. If it concerns housing, it falls in principle under the amended law of 21 September 2006 on the lease for residential use.
Originally, the only form of colocation that existed legally was the conclusion of a lease common to all tenants with the landlord. It is still the most common today. Such a lease usually contains a solidarity clause in favor of the lessor.
With the practice and the emergence of the shared renting of a home between strangers, the landlords have diversified the legal forms of roommates. We now find the opportunity for the owner to sign a lease with each roommate separately. The lease must contain, in this case, the mention of the private space of each roommate and the common areas.
It is also possible that the roommate is granted, not by the landlord, but by his tenant, who sublets in colocation the various rooms in the rented object. Unless otherwise stipulated in the lease, the sublease does not require the lessor's authorization. In practice, however, it is common for the owner to insert a clause prohibiting or submitting to his authorization the possibility of subletting the premises.
The lack of specific colocation legislation is not an obstacle to the possibility of concluding such a lease with several lessees. However, there are peculiarities related to this type of rental that should be explained below.
II. The execution of the lease contract during the roommate
A. Payment of rents and charges
When the flatmates have signed a joint lease with a solidarity clause, the rent debt is indivisible and they are therefore all bound to the rent. This means that the landlord can claim the total amount of rent from each of them. This solidarity is particularly interesting for him when one of the takers is defective. The other roommates can then turn against this default roommate.
In the absence of a solidarity or indivisibility clause, each roommate is only liable for his share of the rent.
The same is true when each roommate has signed a separate lease with the owner. If one of the roommates does not pay his rent, the owner can not, in this case, turn against the others to get this payment. The lessor can also conclude each lease of colocation on different terms.
In the case of a common contract, the roommates divide the rent between them, while in the case of separate contracts, each roommate is liable for the rent stipulated in his lease.
In a sublease contract with roommates, it is the main tenant who owes the full rent to the landlord. In the event of default by the main tenant, the lessor has direct action against each sub-tenant, but only up to the price of the sublease in question. Here again, the situation will be different depending on whether the tenant has shared a sublease with the flatmates, or whether he has granted individual sublease contracts to each roommate.
B. Rental insurance
Generally, the landlord asks the lessee to take out rental insurance, which insures the tenant against the rental risks.
Rental insurance is also required by the lessor for people who rent in a group, but it is more difficult to implement. There are different solutions.
In the first place, one of the tenants can insure the property as a whole, at the expense of the roommates to distribute the expenses. There is a risk, however, if the insured tenant decides to leave the apartment. It will then be necessary to re-enter the process of taking out new insurance. This solution is absolutely not recommended for roommates where tenants change regularly.
Another solution is for each roommate to take his own rental insurance. The disadvantage of this solution lies in the possibility for insurers to "return the ball" to know who is responsible, to the detriment of the owner who will have to wait for the end of the settlement of the dispute between the insurers in order to be compensated for its damage. Hence the importance for the lessor to require that all insurance contracts be concluded with the same insurer.
Finally, the landlord may agree with roommates that he takes out rental insurance on behalf of all roommates and that this annual insurance charge is recoverable with each payment of rent.
C. The responsibility of roommates
The roommates have several obligations which are primarily to pay the rent and the charges, but also "to use the rented thing as a good father, under pain of incurring their responsibility.
At the end of the lease, except in case of normal wear, if the property is degraded, the roommates are responsible in solidum for the damage caused. They can be exonerated by proving that the degradation is due to the fact of another roommate.
In the event of a claim, Article 1734 of the Civil Code, which refers to the hypothesis of several tenants in a building, is also applicable in the case of roommates.
What the landlord often ignores is that he may also be responsible for a roommate's troubles with another roommate of the landlord. This would be the case, for example, if one of them is responsible for night-time noise or nuisance of another nature.
In the case of subletting to roommates, the main tenant is liable for damage caused to his lessor by his sub-tenants.
Although the colocation does not have its own regime, the lessor can, thanks to the contractual freedom, frame more strictly the execution of the lease contract, subject to respect the imperative provisions of the law on the lease for use of dwelling. The situation of the end of the lease contract is, on the other hand, more complex in legal terms.
III. The end of the lease
A. Termination of the lease
The law relating to the lease of residential use is in principle applicable to housing roommates.
• Termination by the lessor
The lessor may terminate this lease under the same conditions as vis-à-vis a single tenant. However it is necessary to specify certain situations.
In a roommate with a single lease common to all roommates, the lessor must send his termination to each roommate. As an exception, if there is a solidarity clause in the contract, the notification to one will have effect with respect to all.
If the roommate has been granted by individual lease agreements, the termination of each roommate lease must be sent to the roommate concerned, but the lessor may also, if applicable, terminate a specified roommate lease and retain the others.
In the case of a sublet colocation, the lessor must address the termination to the main tenant and not to the sub-tenants.
• Termination by one or more roommates
The decision to terminate the lease may also come from one or more roommates.
The cancellation by all roommates of the lease is possible and terminates the lease if it is made in accordance with the lease concluded, including the observation of the notice period.
The question is more delicate when only one of the roommates decides to leave the house. In this case it is important to distinguish between different forms of colocation.
In the presence of a single lease for all roommates, the lessor will be forced upon each departure, or arrival, to make an amendment to change the parties to the lease.
For a lease common to all roommates, accompanied by a solidarity clause, the tenant who terminates the lease still remains liable for rent and charges due, not only before his departure, but also after.
Thus, the outgoing joint tenant will be liable to the lessor of rent and charges even if he no longer lives in the apartment. He will also be liable for damages in case of deterioration of housing. The roommate can always try to conclude a contract with the lessor, relieving him of his solidarity.
In the absence of a solidarity clause, the roommate who terminates the lease terminates his commitment to the lessor. The rent fixed in the contract will be distributed among the remaining roommates. In principle, the parties will find another roommate.
On the other hand, in the case of a plurality of lease agreements, the departure of one roommate does not affect the situation of the others. This solution is particularly interesting in the context of a shared rental between strangers.
It is the same in the hypothesis of a sublease, where the departure of one of the sub-tenants does not pose any particular problem. The departure of the main tenant nevertheless generates more complications because the cancellation of the main lease automatically leads to the lapse of the sublease contracts. Sub-tenants will be forced to leave the dwelling or sign a lease contract directly with the landlord. If one or more sub-tenants remain in the premises, the main tenant will remain liable for occupancy compensation.
B. The rental guarantee and the deposit
The end of the lease agreement is usually accompanied by the end of the relations between the parties and therefore the restitution of the rental guarantee and the end of the commitment of the sureties.
The rental guarantee is intended to guarantee the payment of rents, rental charges and any damage to the rented premises. It can take many forms and will be returned after the expiration of the lease subject to the various amounts owed by the tenant.
No provision regulates the case of the departure of a tenant in a flat share before the end of the lease contract. Thus, contrary to the assumption of an individual contract, the lessor has no obligation to return part of the rental guarantee to the outgoing roommate if it is a common lease.
This roommate should seek to arrange with other roommates or with the owner. If the rental guarantee was established in the name of the roommate leaving, it must be reconstituted by the remaining roommates.
Owners often require a deposit when the tenant does not have sufficient resources. Bail is an ancillary right that follows the fate of the principal. In case of solidarity between the roommates, the surety will be held in the same way as the tenant that it guarantees, that is to say even if it leaves the housing. On the other hand, it is possible contractually to restrict the commitments of the surety by considering that it is given only for a certain time or a certain share.
Without solidarity between the roommates, the bond of a roommate will be held as in common law conditions, that is to say only for the share of the tenant he endorses.
Colocation is currently difficult to understand legally due to the lack of specific legislation. In a country where this type of housing is rapidly expanding, it would be advisable to devote a special regime to it in order to ensure the legal security of all the parties concerned.
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By Lex Thielen, lawyer at the Court and author of the books "The professions of real estate in Luxembourg law", Editions Larcier, 2010, "The lease contract", Editions Promoculture / Larcier 2013, "All about real estate" , Editions Promoculture / Larcier (1st edition 2015, 2nd edition November 2016) and "Immobilienrecht in Luxemburg, einfach erklärt" Editions Promoculture / Larcier 2016.