Likelihood of winning in the small claims court: Non paying guarantor

Queenied

Would be grateful if anyone particularly of a legal background could help me here.

In the spring, a tenant of mine vacated my house as per the tenancy agreement. However, she had not paid the last 2 months rent before she left claiming some sort of problem with her housing benefit which she was paid directly.

As a result, the company in charge of letting and managing the property (I live in another part of the country) contacted the tenant’s guarantor to get the money from him. He stated he would try to resolve the issue with the tenant directly.

To cut it short, I have never received this money and as a result I was given the tenant’s initial bond/deposit (equal to one month’s rent) to partially cover the shortfall. I am now planning to issue a claim against the guarantor in the county court (the small claims track) to recover the rest of the money. I am aware that you have to use all reasonable measures to resolve the issue before resorting to legal action– writing letters giving the person a certain deadline by which to pay, sending it by recorded delivery etc. I did this on two occasions in July and Sept but received no reply or money.

As a result I contacted the managing company a couple of weeks ago to get a written copy of all communications they had had with the guarantor over the last few months so that I could pursue my case. It then transpired that the written address for the tenant and guarantor on the tenancy agreement was incorrect, unbeknown to me, and so the guarantor never received the letters I sent. The street and town were correct but the house number was 4 numbers out. On top of this the tenant’s surname on the tenancy agreement has been slightly misspelt (one letter is wrong) on the front page of the tenancy agreement although it has been spelt correctly on the back page and both the tenant and guarantor have signed the agreement (even though there are errors) in the presence of the letting agent. To be honest, I thing the agent was to blame for these important typos.

What I would like to know is, is it worth pursuing a small claim i.e. am I likely to win the claim given that
- the tenant’s name has been misspelt in one place (and spelt correctly in another) on the tenancy agreement
- the address of the guarantor is incorrect
- but the tenancy has nevertheless been signed by both.

If it is, I realise that I will have to write to the guarantor again – this time at the correct address – giving him a deadline by which to pay the outstanding money.

Sorry that this is longwinded. Many thanks in advance for any advice, R

lincroft1710

How much are you owed?

hethmar

I dont think minor typos will affect the validity of your claim as long as they both signed and its witnessed. However, bear in mind if it does go to court you will have to travel down to the local court possibly more than once if they dont turn up. Then if you do get judgment you have to enforce that. Is it a sum worth pursuing bearing that in mind? NB. You cannot claim costs in a small claims court.

Go ahead and write the letters to the man again. (BTW If you sent recorded delivery to a house 2 doors away, how come someone signed for the letter the other end? Have you checked that the letter didnt actually get to the right person - ie who signed for it?)

speedtwin

I agree the typo's shouldnt bea problem.

As long as the guarantor has signed a valid guarantor document preferably as a deed and the signature wittnessed I see no reson why you cant claim off them.

To be on the safe side just sent another letter out by reg post giving 5 days to pay followed by another, "letter before action" letter. I bet he got the first ones anyway, my postman still delivers to me if it has the wrong house no onthe letter but correct name.

Then do your moneyclaim online and if not defended you win by default.If he still doesnt pay, with the ccj against him your can get a charge put against his house. (he is a home owner isnt he? Because there is no point in someone being a guarantor unless their not) or go for attachment of earnings.

Queenied

Thank you for all your feedback - it's very useful.

The sum in question is £525 so I think it is worth pursuing, at least initially.

Re the recorded delivery, the first letter was sent recorded delivery by my solicitor. She then informed me that it had not been collected. I had also sent another copy of the same letter by normal post - not returned.

I followed the same process with the second letter but I sent both copies of this myself (not through solicitor) but I have had nothing to say that these WEREN'T collected.

I will now send a recorded delivery letter again - to the correct address this time! - giving the guarantor notice to pay.

Cheers all

scrummy_mummy_2

Please be aware that there is a BIG difference in winning a claim in the small claims court and then getting the actual money...just because you win, doesn't mean you will get the money and you will have to pursue the defendant separately for the money through enforcement orders/bailiffs etc. That's even if you can find them!
Winning the initial judgement is just the start of it.

You need to do a cost/payback analysis.....how much it will cost you in terms of your time and money to chase the non payer versus the likely payback.

You may very well get a CCJ against the guarantor, but, unless he pays at the judgement stage to avoid the CCJ, you will have to engage in a nother round of recovery through the civil courts...more time and more money to still not (perhaps) ever get your money back...and yes you can claim costs in the civil courts.

fimonkey

If the guarantor or the tenant knows this then they will hold out till the very last, which is what many tenants do cos they presume the landlord won't pursue such a small amount to the bitter end.

hethmar

I found that an "oral examination" achieved payment of a case for which we had judgment. The defendant is requested to attend a hearing at which he has to disclose all his finances and financial dealings - this was enough to worry our dodgey (millionaire!)debtor and he paid up with interest we had claimed. If someone doesnt appear at the hearing they can be arrested.

Troubled_Joe

I'd agree with most of what has been said above.

Someone has stated that the guarantee should "preferably" be executed as a deed. A guarantee MUST

Troubled_Joe

I'd agree with most of what has been said above.

Someone has stated that the guarantee should "preferably" be executed as a deed. A guarantee MUST be executed as a deed on the basis that there is no consideration received by the person acting as guarantor.

All the best with the claim - feel free to PM me if you have any specific queries.

Queenied

Thank you all once more. I realise that winning the case is only the beginning. Unless I'm very lucky other steps will be involved but I will take one step at a time for now and weigh it up / decide as each new situation arises.

Speedtwin / Troubled Joe: Not sure by what you mean when you say that the guarantee must be executed / signed as a deed. Could you clarify? The only document the guarantor has signed is the assured shorthold tenancy. Ta!