Can I Find A Legal Loophole In This Guarantor Form I Signed.. Court Case Next Week

drv1981

Hi.

in 2006 i signed a guarantor form for my sons gf at the time and her friend. They broke up, contract continued beyond fixed term periodically, and now they left recently. 3 months rent unpaid, they are uncontactable, and thus the cliam has come to me.

What ways are there to challenge this.. Can i claim its not my deed by having signed it, but not faxing back, but they received it at their end, suggesting my sons gf at the time had infact faxed it, not me, as i do not think they have the originals to hand as i do not ever sending this to them, thus all they have is a faxed copy.. no witness.

Here is the text i copied out word for word, excluding the typos..

Note: no rent review or changes have occured at any point, so i cant use that get out clause.

Case is next Monday:

FAX COPY ONLY I BELIEVE - I DO NOT THINK THEY HAVE THE ORIGINAL:

TO: "PROPERTY OWNER"
OF: "THEIR ADDRESS"
FROM: ':MY NAME"
OF: "MY ADDRESS"


GUARANTEE FOR PAYMENT OF RENT AND OBSERVANCE OF TERMS OF TENANCY AGREEMENT BY A TENANT.

IN CONSIDERATION of your having agreed of my request to accept "Tenant A" and "Tenant B" as the tenant of your house "Address of property" upon the terms of an agreement dated 4th November 2006 ("The tenancy agreement") at the rent of £750 per month payable by monthly payments on the usual monthly days I guarantee the payment by the tenant to you of the rent and the performance and observance by him and the terms of the tenancy agreement upon the following conditions:

1. Payment of rent if a month in arrears.
If the tenant defaults in the payment of the rent for the space f one month i will upon a written request by you pay the months rent which is in arrears.

2. Payment of damages of breach of covenant.
If the tenant defaults in the performance or observance of any of the provisions on his part contained in the Tenancy Agreement I will pay you all losses damages expenses and costs which you shall b entitled to recover by reason of his default to the extent to which you are unable to recover them from the tenant.

3. Duration of Guarantee.
This guarantee shall continue for the duration of the tenancy agreement AND any subsequent statutory tenancy created thereafter and extend to the acts and defaults of the tenant during the period but during that period ir shall not be revocable or discharged by my death or by the death or bankruptcy of the tenant and with out prejudice to the foregoing provisions of this clause this guarantee shall not be discharged by your giving the tenant time which to meet his rent or other indulgence in respect of his obligations under the tenancy agreeement.

4. Guarantee to cease on determination of tenancy.
If the tenancy agreement is assigned with your cnsent or is terminated by agreement or by re-entry or otherwise all duture liability on my part shall cease.

Dated "The signed date" Signature of Guarantor "My signature"

NOTES TO YOU GUYS:

There is no witness, no name by the signature at the base, no citing remarks or otherwise and thus i do not believe this to be a legally binding document, and more so this guarantee can not be a deed, and it should be as in my scenario i do nt believe there was any consideration to me, unless the consideration between Tenant and Landlord pases to me, but then aving read elsewhere, this is what someone had wirtten elsewhere:

---

the cases are available on Westlaw, but are rather lengthy, the summary of each does not properly cover the position.

The point I am making is that deeds are usually required where there is no consideration. Wyvern is authority that you can have a contract where the consideration moves from the promisee but need not move to the promisor. (basically as long as the promisee suffers detriment in reliance that should be sufficient)

Tanner is authority that where a woman gave up her Rent Act protected accomodation to move in with her partner on the understanding she would be entitled to live there with her two children (partner was father) until the children were 18 is sufficient detriment to create the contract.

My view is that the guarantor promises to ensure the tenants compliance (or remedy a breach) and the detriment to the LL is that he allows tenants in that he would not have allowed to move in had the guarantor not made that promise.

That is (IMO) suffcient detriment to satisfy the consideration element. It moves from the LL to the T (and Wyvern is authority that the promise nede not go to G (as long as it goes somewhere) and Tanner supports the view that it moving to the T is sufficient).
----

whats your thoughts on this

Could the consideration argument hold up or whats your ideas, advise, help .

Pleaseeee

Thank You

maninthestreet

Why on earth did you agree to act as guarantor for your son's girlfriend and 'her friend'?

drv1981

hi

i ask myself this too!!!

I did it for him at the time, to help her based on his request. Something i will learn to never do again.

They are no longer together since a month after this was signed, but the fact remains i have this situation now..

poppysarah

Ask your son what he's going to do to assist you.

ILW

You guaranteed it would be paid.
They did not pay it.
Why should you be trying to wriggle out of your commitments?
Pay the money that is owed as you agreed to.

alias69

I feel terribly sorry for you as I am sure that you did this in good faith with all the assurances in the world that it was just to secure the property and that they would always pay on time, signed it and forgot about it.

However, with good reason, I suspect that you are going to find little sympathy on this site - you entered a legal agreement to pay the rent should the tenants default, this has occurred and hence you are liable.

If you are looking to get out of the contract I would suggest you seek proper legal advice, as they will be able to find something in their that either invalidates the contract or would allow you to avoid the payment.

Hindsight is a great thing and I'm sure other have / will do the same in the future.

For now though I would suggest that your son is going to owe you at least £2250...

neas

erm... pay up?

Isnt that what you agreed to do? If you didn't understand the reamifications of being a guarantor why did you do it?

Where has dignity, honesty, and self-worth gone from people?

ILW

I would pay up before the court appearance or you will probably get hit with the claimants legal costs as well.

DigitalJedi

I agree with the others. You signed the contract and the landlord accepted that in good faith.

Faxes can be used as legal documents. Also, courts will look at the intent of the contract too. The intent here was clear. You committed to paying the landlord in the event the tenants didn't. You knew that and now trying to wriggle out of it on a technicality.

I suppose you'd be the first to cry foul if the bank tried to sell your house having found a "technicality" in your mortgage contract?

Be a man and cough up!

McKneff

ILW wrote: »

I would pay up before the court appearance or you will probably get hit with the claimants legal costs as well.

this is good advice. and also the advice given about asking your son for assistance.

GDB2222

drv1981 wrote: »

Can i claim its not my deed by having signed it, but not faxing back, but they received it at their end, suggesting my sons gf at the time had infact faxed it, not me, as i do not think they have the originals to hand as i do not ever sending this to them, thus all they have is a faxed copy.. no witness.

There is no witness, no name by the signature at the base, no citing remarks or otherwise and thus i do not believe this to be a legally binding document, and more so this guarantee can not be a deed, and it should be as in my scenario i do nt believe there was any consideration to me, unless the consideration between Tenant and Landlord pases to me, but then aving read elsewhere, this is what someone had wirtten elsewhere:

---

the cases are available on Westlaw, but are rather lengthy, the summary of each does not properly cover the position.

The point I am making is that deeds are usually required where there is no consideration. Wyvern is authority that you can have a contract where the consideration moves from the promisee but need not move to the promisor. (basically as long as the promisee suffers detriment in reliance that should be sufficient)

Tanner is authority that where a woman gave up her Rent Act protected accomodation to move in with her partner on the understanding she would be entitled to live there with her two children (partner was father) until the children were 18 is sufficient detriment to create the contract.

My view is that the guarantor promises to ensure the tenants compliance (or remedy a breach) and the detriment to the LL is that he allows tenants in that he would not have allowed to move in had the guarantor not made that promise.

That is (IMO) suffcient detriment to satisfy the consideration element. It moves from the LL to the T (and Wyvern is authority that the promise nede not go to G (as long as it goes somewhere) and Tanner supports the view that it moving to the T is sufficient).
----

whats your thoughts on this

Could the consideration argument hold up or whats your ideas, advise, help .

My thoughts are:
1. If you are going to challenge the legality of the document, you need to get professional legal advice. There's a £2000 + at stake, and you need to know where you stand.
2. You are right that ideally the guarantee would be written as a deed. this was not a deed. It was written as a contract (and faxed contracts are valid, by the way).
3. You are right to challenge whether there was 'consideration' under the contract, ie you gained something from it. The contract states "IN CONSIDERATION of your having agreed of my request to accept "Tenant A" and "Tenant B"". This is an interesting and technical point of law, ie whether you did actually request this and whether you gained by it. You need proper legal advice from someone who knows the case law on this.
4. At the very least go see your CAB. It's barely worth your time to go to court unless you have found out the legal position beforehand. Although county court judges are quite good at providing their own interpretation of the law for small claims, the UK legal system requires each party to present their case, including the legal arguments.